Preamble

The House met at half-past Nine o'clock

PRAYERS

MADAM SPEAKER: [MADAM SPEAKER in the Chair]

Orders of the Day — Criminal Cases Review (Insanity) Bill [Lords]

Order for Third Reading read.

Mr. Chris Mullin: I beg to move, That the Bill be now read the Third time.
I need not detain the House long. This Bill has one simple purpose, which is to plug a small gap in the Criminal Appeal Act 1995. That Act set up the Criminal Cases Review Commission, which deals with alleged miscarriages of justice. The Bill empowers the commission to deal with cases—there are likely only to be a handful—in which a person has been found guilty but insane. That verdict was available to the courts until the 1960s, when it was replaced by a verdict of not guilty by reason of insanity.
The Criminal Appeal Act 1995 empowers the commission to deal with verdicts of not guilty by reason of insanity, but no one, myself included, foresaw that there might still remain a handful of disputed cases that dated from the earlier era when the verdict was guilty but insane. Consequently, the 1995 Act made no provision for such cases.
The case that brought the anomaly to light was that of Iain Hay Gordon who in 1953 was tried in Northern Ireland for the murder of a young woman. The case attracted enormous interest since the victim was the daughter of a prominent judge. There are good grounds for believing that Mr. Gordon was neither guilty nor insane, but those are not matters that need detain us—suffice it to say that Mr. Gordon, who is now frail and elderly and has long protested his innocence, applied in 1998 to the Criminal Cases Review Commission for his case to be re-examined.
The commission, after seeking legal advice, decided to refer back to the Northern Ireland Court of Appeal the issue of whether it was empowered to consider cases involving a verdict of guilty but insane. The Northern Ireland Court of Appeal ruled that it was not—hence the need for this Bill.
Lord Ackner first attempted to introduce a Bill for this purpose in July last year, but it unfortunately failed to become law for lack of time. In March this year, he introduced the Bill before us, and as he said at the time, the omission of a verdict of guilty but insane from the 1995 Act is an error that has created a "longstanding and

tragic absurdity" in the case of Iain Hay Gordon. Such an outcome was never intended by any of those—and I was one—who played a part in the passage of the 1995 Act. This Bill seeks to rectify that.

Mr. Eric Forth: Can the hon. Gentleman tell us whether there is a significant number of other likely cases in this category? Are we dealing with only one known case, or does the hon. Gentleman believe that there might be others—perhaps only a small number—to which the benefits that he is claiming for the Bill would apply?

Mr. Mullin: I am aware only of the case of Iain Hay Gordon. Although I could not give the right hon. Gentleman details, I have heard that there is at least one other, but it is unlikely that there are more than three or four because we are talking about cases that date from before the mid-1960s.

Mr. Edward Garnier: Even if the Gordon case is the only one which this Bill will correct, does the hon. Gentleman agree that that of itself is sufficient reason for passing it?

Mr. Mullin: I most certainly do. If Mr. Gordon is innocent, he has had hanging over him for more than 40 years a considerable burden. He wants to see that put right before he dies. The Criminal Cases Review Commission is extremely keen to deal with the case expeditiously, but cannot do so until the Bill becomes law. I therefore hope that everyone will co-operate towards that end.
I thank all those who have helped to address this problem, not least the Under-Secretary of State for the Home Department, my hon. Friend the Member for Vauxhall (Kate Hoey) and Home Office civil servants, for the constructive part that they have played in the drafting and passage of the Bill. I acknowledge, too, the helpful approach of the Criminal Cases Review Commission and thank the right hon. Member for Penrith and The Border (Mr. Maclean)—himself a former Home Office Minister—for the constructive approach that I understand he intends to take.
I hope that the commission will do all that it can when the Bill becomes law to expedite consideration of Mr. Gordon's case. I am aware that it has a large backlog of cases and a policy of not giving priority to those who are at liberty unless there are exceptional circumstances. As I said in response to the right hon. Member for Bromley and Chislehurst (Mr. Forth), there clearly are exceptional circumstances in this case: getting on for 40 years have elapsed since Mr. Gordon was convicted. Many of those who were directly involved in the case are already dead and Mr. Gordon is elderly and not in the best of health, and wishes to see the matter resolved in his lifetime.
I also gently draw the attention of the Criminal Cases Review Commission to recommendation 7 of the recent Home Affairs Committee report on the commission's work, which expressed the hope that, in the light of extra resources made available this year, some progress would be made on the backlog of cases involving persons at liberty.
I was glad to hear yesterday that the commission has started preliminary work on the Iain Hay Gordon case. I hope that the commission will regard the smooth


passage that Parliament will, I hope, grant the Bill as a signal that we expect Mr. Gordon's case to be expedited. I, for one, will follow progress with interest.
I commend the Bill to the House.

Mr. Edward Garner: I am most grateful to be called to speak, not only because I wish to support the hon. Member for Sunderland, South (Mr. Mullin) in ensuring the Bill's passage but because, like him, I take a great interest in miscarriage of justice cases. The hon. Gentleman knows, as other Members of the House who were Members before 1992 may know, that my predecessor as Member for Harborough, Sir John Farr—now sadly dead—took a great interest, with the hon. Gentleman, in the case of the Birmingham Six.
I hope that I do not embarrass the hon. Member for Sunderland, South when I say that that was a most unusual marriage of minds. The hon. Gentleman is a radical journalist and a member of the Labour party and, apart from being a civilised person, has little in common with my predecessor—a farmer and a business man of the old school, who one might think would have no interest whatever in the misfortunes of the Birmingham Six. However, at least some of them ended up in Gartree prison for a while, which is in the Harborough constituency, and as a result of his going to meet and speak with some of the Birmingham Six, Sir John came to understand that there might well have been a miscarriage of justice in that case. Without the work of the hon. Member for Sunderland, South, with the help of my revered predecessor, the Birmingham Six might have been in prison to this day.
I come at this issue from a personal position of great interest in the justice system. I come at it as a practising member of the Bar—albeit I do not practise in the criminal courts except as an assistant recorder—and, I hope, as someone who generally is interested in injustice and putting right things that have gone wrong.
If the intervention that I made on the hon. Member for Sunderland, South does anything, it shows that if one man still lives who has or may have suffered a miscarriage of justice as a result of a drafting lacuna in the Criminal Procedure (Insanity) Act 1964—which changed the relevant verdict in matters such as this from "guilty but insane" to "not guilty by reason of insanity"—and has been denied a proper review of his case, it is right and proper that the House, irrespective of party differences about law and order and so on, if they exist, should give the Bill a Third Reading.

Mr. David Maclean: Surely my hon. and learned Friend does not consider this case to be a priority for the Criminal Cases Review Commission? As the hon. Member for Sunderland, South (Mr. Mullin) said, Mr. Iain Hay Gordon is at liberty, whereas others whose cases need to be reviewed are still in prison. In those circumstances, does my hon. and learned Friend agree that this case, although deserving, is not a priority?

Mr. Garnier: I do not know whether our deliberations today will order the commission's priorities. However, if the Bill becomes law, it will allow the Criminal Cases

Review Commission to consider the case. Despite the willingness of the Northern Ireland Court of Appeal to consider the verdict in the case of Mr. Iain Hay Gordon, it found that, by virtue of the drafting aberration in the 1964 Act, it could not do so. It is not for me, for the House or for the Minister to tell the Criminal Cases Review Commission the order in which to consider cases.
I have a particular interest in a case involving the M25 murders. Just as Sir John Farr, my predecessor, went to meet and had dealings with members of the Birmingham Six who were temporarily resident in Gartree prison, I have had dealings with Mr. Raphael Rowe, who is no longer imprisoned in my constituency but was for some little time during the previous Parliament. As a consequence of representations that his lawyers, he and his fellow defendants made to me and other Members of Parliament—I am thinking in particular of my hon. Friend the Member for Mole Valley (Sir P. Beresford) and my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe)—

Mr. Deputy Speaker (Mr. Michael J. Martin): Order. I advise the hon. and learned Gentleman that he may be going wide of the Bill before us, because he is dealing with cases that would not be affected by the Bill.

Mr. Garnier: I apologise, Mr. Deputy Speaker. I was seeking to show that the Criminal Cases Review Commission may have to deal with a number of cases as a consequence of this legislation—although not many—but that it was not for us to order its priorities. I was merely illustrating that by mentioning the case with which I had to deal. I have approached the Criminal Cases Review Commission on behalf of Mr. Raphael Rowe, and I am happy to say that, at last, that case has been referred to the Court of Appeal. It is not for us to say to the commission, "Look at this case before another", and it is not for us to tell the Court of Appeal how to order the list of referred cases.
As the hon. Member for Sunderland, South said, the Bill comes to us with a good degree of all-party and non-party agreement from the other place. It was first introduced in 1998, but fell as a result of lack of time. Fortunately, Lord Ackner was able to reintroduce it in March 1999, and the record is there in the Lords Hansard for those who wish to see how unanimous was the support for this small but important Bill. I invite my hon. Friends to join the hon. Member for Sunderland, South in supporting it.
The Bill introduces an entirely necessary, but humane and civilised way of righting a wrong. The wrong revealed was that in the case of Iain Hay Gordon. He was caught by the drafting error or omission following the amendment of the Trial of Lunatics Act 1883 by the Criminal Procedure (Insanity) Act 1964, which simply changed the name of the verdict in cases such as this but had no real bearing on the stigma or status of the individual defendant.
For all I know, Mr. Hay Gordon may have killed the lady in question in the early 1950s. I believe that the hon. Member for Sunderland, South is one of those who think that he probably did not or may not have done. In any event, it seems wholly wrong that a person should be denied access to a review procedure by reason of an obvious drafting omission or error in the 1964 legislation.
The matter touches on the way in which we view the insanity defence. As I understand it, the vast majority of prosecuted mentally disordered offenders in this jurisdiction—England and Wales—are convicted rather than excused, and in most cases, mental disorder does not negate criminal responsibility, but instead may lead to treatment in the form of a hospital order. Moreover, the practice of punishment presupposes the very responsibility that the legally insane lack. Therefore, as none of the purposes behind punishment can be legitimately applied to the person who was judged to be insane at the time of committing the offence, exculpation should follow. Hospitalisation presupposes responsibility for the offence and brings with it the stigma of guilt.
For the past 45 years or so Mr. Hay Gordon has, in effect, had to live with the stigma of guilt. It is a matter of evidence and a matter of judgment whether he committed the act—of killing the young Miss Curran—in the 1950s. It is also a matter of evidence and a matter of judgment whether, if he did so, he was deficient in mental capacity when he committed the offence.

Mr. Forth: I wish to be clear in my mind, which will help me in my contribution if am able to catch your eye, Mr. Deputy Speaker. My hon. and learned Friend is not saying, is he, that we can or should make any presumption about the innocence or guilt of any individual? I would not expect my hon. and learned Friend to make any sort of assumption. As I understand it, any individual, including the one named, has gone through due process and regrettably—it may not be the position in the case of Mr. Iain Hay Gordon—is presumed to be guilty until due process demonstrates otherwise. Surely my hon. and learned Friend is not basing his case in any way on any presumption that there has been some sort of miscarriage of justice.

Mr. Garnier: My right hon. Friend is partly right. He is right not to assume that I am making a presumption. Instead, I am advancing an argument. I hope that it is one that commends itself to the hon. Member for Sunderland, South. It is my belief that Mr. Iain Hay Gordon is being denied access to justice. Those who post-1964 or 1965 who—I use the language loosely—committed the act but were insane at the time have access to the Court of Appeal criminal division. Now, since the passing of legislation under the Conservative Government, they have access to the Criminal Cases Review Commission. However, the defendant in the Northern Ireland case does not.
It seems unjust and unfair that as a result of a legislative error in 1964, Mr. Iain Hay Gordon, who I understand is in his early 70s—

Mr. Maclean: He is 66.

Mr. Garnier: I think that he was about 21 at the time. He has had to live right through to the end of the century believing in any event that he was innocent of the crime. On top of that, he has had to bear the baggage of being publicly considered to have been insane. It is bad enough to be unfairly convicted of a criminal offence as serious as murder. To be excused for what he did because he is said by the courts to have been insane must be doubly anxious-making. On top of that, this poor man has been denied access to appeal proceedings, simply because the 1964 legislation did not contain about half a dozen words.
In my view—my right hon. Friend may take an entirely different view for legitimate reasons that he may expound to the House—and from where I stand, I do not consider what has happened to be right, and I want to do something to correct the position.

Mr. Forth: My hon. and learned Friend has referred to the stigma of insanity. Surely we cannot have it both ways. If we assume—I may wish to challenge this if I am given the opportunity to do so—that insanity is an exculpatory or mitigating factor, which I have always had doubt about, and in a peculiar way the accused receives the benefit of that, which in the days of capital punishment would have been a benefit, very dramatically, can we at the same time regard insanity as a stigma? After all, it has been used as a reason for not blaming somebody. Is my hon. and learned Friend in any way trying to have it both ways?

Mrs. Maria Fyfe: On a point of order, Mr. Deputy Speaker. The purpose of the Bill is to put right an unintentional fault in the law. It has nothing to do with whether my constituent, Iain Hay Gordon, was guilty of the offence or whether he has or has not been insane at any time. The Bill will put right a fault in the law, and that is what we are trying to do. I look forward to our doing it.

Mr. Deputy Speaker: We cannot have a general debate about insanity. However, the case of Mr. Iain Hay Gordon has been referred to in the explanatory notes and the hon. and learned Member for Harborough (Mr. Garnier) is able to rebut or support the intervention of the right hon. Member for Bromley and Chislehurst (Mr. Forth).

Mr. Garnier: I can well understand the frustration of the hon. Member for Glasgow, Maryhill (Mrs. Fyfe). As she says, Iain Hay Gordon is one of her constituents, and I would think that the Bill is supported by the vast majority of hon. Members. It has been supported by all parties and by the retired Law Lord, Lord Ackner, in the other place. I know exactly where the hon. Lady is coming from. I entirely sympathise with the sense of frustration that I detect across the Chamber.

Mr. Forth: On that point, will my hon. and learned Friend—

Mr. Garnier: No. I would be most grateful to my right hon. Friend if he were a little patient. I want to deal with his point about stigma. I hope that my dealing with it will assist us in our deliberations and persuade those who are reluctant to give the Bill a fair passage that there are good grounds for taking a different view.
I do not want to go into general emotions or whether it is a proper matter for sympathy if someone is declared to be insane in respect of a criminal act. That is not my case. There are many things in this life that bring with them no moral opprobrium.
Let us assume that a woman is falsely accused of having been raped. Rape is a hideous crime and the woman can bear no blame. Yet if a woman is falsely accused of being the victim of rape, it is none the less defamatory. I have only to remind my right hon. Friend of the famous libel case in the 1920s of Princess Yusupov


against MGM, in which the widow of the young Russian prince, who was falsely portrayed in a film about Rasputin as being defiled by him, recovered what in those days was a huge sum in damages.
If a constituent of the hon. Member for Maryhill, who is the human reason for the Bill, has been falsely accused of being insane and falsely accused of being responsible for the killing of Miss Curran, that is a stigma which he is entitled to see removed. If the Bill gives him access to the Criminal Cases Review Commission and to the Court of Appeal as a consequence of a referral by the commission, that seems a good end and one that the House should applaud. Indeed, it should seek to do everything in its power to bring about that end.
The hon. Member for Sunderland, South expressed a few misgivings about the speed with which the commission has been able to deal with cases. He mentioned a backlog. I know that the commission, in its submissions to the Home Affairs Committee, of which the hon. Gentleman is the Chairman, said that it needed a great deal more resources and more caseworkers so that it might speed up the work in which it is engaged. I think that it put in a bid to the Home Secretary for an extra £1.3 million. I understand that the Home Secretary scaled that down to about a third of a million pounds. I may be wrong about that, and the Minister or the hon. Gentleman may be able to correct me.

Mr. Mullin: After representations from a number of people, including me, the commission received a large part of what it was asking for. It is in the process of recruiting many extra caseworkers. It may not have everything that it wants but it should be able to make considerable process in reducing the backlog.

Mr. Garnier: I am pleased to hear that. The cases that will benefit from the Bill becoming law must be very few in number. There will not, therefore, be a long queue, at least in this discrete area of cases that may or may not need to be referred. Perhaps the Minister will be able to tell us. I apologised to the hon. Lady privately because I may not be present when she replies, if she is to do so, because of a constituency engagement in Leicestershire—quite near Gartree prison, as it happens—at midday. I apologise to her, to you, Mr. Deputy Speaker, and to the House if I am not in my place to hear the concluding remarks.
The additional money and caseworkers of which the hon. Member for Sunderland, South has spoken will be vital, but the requirement will not be much added to by the Bill. If my right hon. Friend the Member for Bromley and Chislehurst has so far heard only of the case of Mr. Iain Hay Gordon, and if he is complaining about these matters, he has little to worry about.
As at the end of April 1999, as I understand it, the Criminal Cases Review Commission had 444 cases under active review, but it still had 1,176 cases awaiting review. That is a bad set of figures. I hope that, with the Minister's agreement, the money to which the hon. Member for Sunderland, South, the Chairman of the Home Affairs Committee, referred will assist the commission in dealing with the backlog.
I am told that at the end of December 1998, the length of time that an applicant had to wait for a detailed review of his or her case averaged two years. Mr. Hay Gordon

has been waiting since 1952 or 1953. 1952 was the year in which I was born—forty-six and a half years ago. If I were Mr. Hay Gordon, I would be the first to approach my constituency Member of Parliament and invite him or her to press for the Bill. I am delighted that the noble Lord Ackner in the other place was quick to take up that cause.
The House has a history of passing some legislation as a result of a knee-jerk reaction. I shall not list the Bills that the present Government or the Government whom I supported passed in response to press campaigns and single-issue pressure groups. There have been some good Bills that may seem to benefit only one individual. This is one such Bill. Whereas the other place allowed it to be properly considered, with all-party agreement, I trust that the House—

Mr. Maclean: I hate to correct someone as distinguished as my hon. and learned Friend, but the 15 or 20 minutes discussion in the other place was not quite full consideration. It behoves us today to give the Bill more time than that, as we are dealing with a crucial issue of justice relating to a human being. That is no criticism of the other place, which came to the correct conclusion in passing the Bill to us. We need to consider it properly.

Mr. Garnier: My right hon. Friend has his views on the matter, which he must defend if he catches your eye, Mr. Deputy Speaker.
On the question of time, I am bearing in mind the forty-six and a half years that Mr. Hay Gordon has awaited the opportunity to go before some form of appellate jurisdiction. I am bearing in mind, too, the other cases, about which we may not know, of people who were convicted of being guilty but insane between the end of the second world war and the enactment of the mid-1960s legislation. I am bearing in mind the ease with which Parliament, which is sovereign, should be able to pass a relatively self-explanatory, humane and civilised Bill.
I do not want to provoke my right hon. and hon. Friends into taking up more of the time of the House by intervening on me. I urge them to consider carefully what we are about, and the advice that we have received not only from the hon. Member for Sunderland, South, the Chairman of the Home Affairs Committee, but from the distinguished and learned Law Lord, now retired, Lord Ackner.
My right hon. and hon. Friends should consider also the words of our noble Friend Lord Taylor of Warwick, a barrister of some experience in the criminal courts, and of the noble Lord Thomas of Gresford, who has considerable experience both as a solicitor and as a barrister practising in the criminal courts. His remarks in the other place are particularly instructive. I trust that my right hon. Friend the Member for Bromley and Chislehurst, who looks a little puzzled, will study them carefully. There were other speeches there from a layman, our noble Friend the Earl of Portsmouth, who has followed the issue with considerable care.
I know that my right hon. Friend the Member for Bromley and Chislehurst, who is still looking puzzled, may not be a regular reader of The Guardian. I used to work for it; I declare an interest in that respect. My right hon. Friend will find that the issue is not just a lawyers' ramp. It is not just a matter of some half-baked


single-issue pressure group getting up and grabbing hold of parliamentary time and legislative power. This is a properly thought-out Bill which requires to be passed into law, and it commends itself to all hon. Members, regardless of their party allegiance.

Mr. Forth: I am grateful to my hon. and learned Friend for indulging me yet again. He is seeking to impress the House with a litany of very important people, and telling us that they think that this is a good Bill. If the matter is as important as my hon. and learned Friend has so eloquently argued, and if it has the support of so many eminent people, why has it taken to long to get here?

Mr. Garnier: My right hon. Friend has been in government. He knows that every Government will have one excuse or another for not finding it convenient to introduce a particular piece of legislation. If something needs to be done, a Government will find time for it to be done. If something does not need to be done, I have found, amazingly, that Governments will find good reasons for it not to be done.

Mr. Forth: Fox hunting.

Mr. Garnier: My right hon. Friend should not draw me on that—especially as I am about to head off for Leicestershire—or I shall be here for a good while yet.
It will be easy for my right hon. Friend, a man of huge Government experience in at least three Departments, to stand up in due course and explain why the Bill should not be given assistance by the Government. It is a private Member's Bill, but it has been given the assistance of Government—or at least, for once, a Government are not hindering a private Member's Bill. If that is the case, it will only add to the feelings of high esteem which I have for the Minister, my London Member of Parliament.
I hope that the hon. Member for Sunderland, South gets his Bill through this afternoon, and I hope that the hon. Member for Maryhill sees her constituent going into the offices of the Criminal Cases Review Commission and to the Court of Appeal and achieving justice. Whichever way that may mean the dice roll, I want him to achieve justice, and I want the hon. Lady to see him achieve justice.

Mrs. Maria Fyfe: As I mentioned earlier, Iain Hay Gordon is my constituent. His fight to clear his name has been going on for an extremely long time. That is most unfortunate, especially as he does not keep in very good health. He has been desperate to move matters forward so that he can try to clear his name, because he is afraid of going to his death without having managed to do so. That cannot be attempted until the Bill is passed.
The Bill seems to have the support of the entire House. It passed through the other place without difficulty. We are speaking of a minor amendment which arises because of an earlier error. It is clear that for the sake of justice and right, the Bill should go through today.
Having waited so long for Parliament to do what is right, we have a chance today to put right a grave wrong to my constituent. He will be extremely grateful to my hon. Friend the Member for Sunderland, South (Mr. Mullin) and to those who have taken up the matter in another place.
The Criminal Cases Review Commission has been in correspondence with me. I know that a large number of other cases are awaiting its attention, but I, too, appeal to the commission to get on with my constituent's case once we pass the Bill today, because of his age and the fact that he has had this hanging over his head for so many years. Today the House has a chance to unite and do the right thing. Let us get on and do it.

Mr. Peter Luff: I pay tribute to the hon. Member for Sunderland, South (Mr. Mullin), the Bill's promoter, and to the hon. Member for Glasgow, Maryhill (Mrs. Fyfe), for the way in which she has come to this House on a Friday to defend the rights of her constituent. I have a great deal of sympathy with what has been said and I was intrigued to hear my hon. and learned Friend the Member for Harborough (Mr. Garnier), a distinguished Queen's counsel, setting out his thoughts in detail.
Nothing that I will say this morning signals a lack of support for the Bill, and my instinct is that it should pass. However, I am nervous about the lack of scrutiny that the Bill has received. In total, the report of its scrutiny in another place covered five columns of the Official Report of the proceedings on 23 March. No amendments were made and there was no further debate on Report there. The Bill came here and went through on the nod at the end of a Friday. There was no Committee stage—it was taken at the same time on the Floor of the House.
This morning is the first opportunity that the House has had to discuss the implications of the Bill. Therefore, my remarks on Third Reading might be longer than would normally be my practice. It is important that measures of this kind are properly tested, particularly when the House has had no opportunity to do so before. If we look at the Table, we see all the Bills lined up for consideration today. I have lost count of how many there are.

Mr. Forth: Too many.

Mr. Luff: My right hon. Friend may be right, although I do not have quite the antipathy towards legislation that he has.

Mr. Forth: Nobody does.

Mr. Luff: That is probably true. His antipathy comes from deeply held principles, which Labour Members may not understand. Those of us who have had the pleasure of sharing the Tea Room with him, will know how deep seated is his opposition to legislation. I do not have that opposition to legislation, but a Bill such as this deserves close scrutiny.
In the previous Parliament—for reasons that I perhaps should not discuss—I was invited to reflect at length in Committee on a one-clause Bill. It was a harmless, one-clause Bill, and the Clerks had suggested that no amendment was possible to it. I spent some time studying the Bill and developed a series of amendments, as a result of which the Minister clarified the law in a number of important areas. The lawyers and interest groups that I had consulted expressed their deep gratitude to me for clarifying the law. Even the most harmless and innocuous


Bill always gains from proper scrutiny. The House should be nervous of even the best-intentioned Bill being enacted without scrutiny.

Mr. Maclean: Is not another obligation placed on us this morning? We are to pass a Bill that nearly everyone says deals with one specific case—although, theoretically, there could be more. In such cases, we must be careful that we are getting the measure right.

Mr. Luff: Obviously, my right hon. Friend can read my mind. The very next point that I intended to make was that, as I read the Bill's proceedings in another place and the background information, one phrase kept recurring in my mind—hard cases make bad law. That is one of oldest saws in considering legislation.
I have no doubt that the case of Mr. Iain Hay Gordon is a desperately hard case, but this House must not rush—in a fit of perfectly understandable moral eagerness—to put right that case without being sure that we are not doing other injustices in the process. We must be clear about the implications for the bodies affected by the Bill. The Criminal Cases Review Commission lies at the heart of the debate.

Mr. Garnier: My hon. Friend said that we must be careful that the Bill does not produce an injustice in another case. What sort of injustice does he envisage?

Mr. Luff: My hon. and learned Friend invites me to anticipate remarks that I want to make later. In essence, I am asking whether the case that we are discussing is the only one. We have had assurances that it is. How many cases like it might there be in the system?

Mr. Forth: I am certain that I heard the hon. Member for Sunderland, South (Mr. Mullin) say that he thought there might be a few more cases. That is an important point for us all to bear in mind. I agree that if we were dealing with only one case, it would be worrying. There may be more cases, and that leads to the concern about the effect that the Bill might have on other cases—even though we do not know what they are. I hope that that is helpful to my hon. Friend.

Mr. Luff: It is genuinely helpful and that is an extremely important point. Exactly how many cases will be caught by the Bill? That is the injustice that I fear. Understandably, the hon. Member for Sunderland, South expressed the hope that the Criminal Cases Review Commission would give the case priority once the Bill had been enacted. However, the work load of the commission is increasing rapidly and to give this case priority over others—whose merit we simply cannot know—is a matter of concern to me. We are imposing a potentially heavy burden on the commission.

Mr. Mullin: No one is trying to impose a heavy burden on the Criminal Cases Review Commission. The commission wants the power to be able to deal with the matter and will decide the priority to be given to the case—not us. It will still be up to the commission. All that we can do is urge the commission to get on with it, on the grounds that the case has been around for 46 years.

Mr. Luff: The hon. Gentleman is right and I have no wish to argue on that point. The House has had his

assurance that that is the case. How are we to know, however, that this case is the only one? Are there other similar inadequacies—

Mr. Deputy Speaker: Order. I remind the hon. Gentleman that we are on Third Reading and we should be discussing what is in the Bill. Perhaps these remarks should have been made in Committee or on Second Reading.

Mr. Luff: With the greatest of respect, Mr. Deputy Speaker, there was no Second Reading and no Committee. That is precisely the problem and that is why we must look at the Bill in a little more detail on Third Reading than would normally be the case.

Mr. Deputy Speaker: Order. I understand the hon. Gentleman's point that there was no Committee, but that is no fault of mine. I am guided by the rules of the House, which are clear. Third Reading is a narrow debate, based on what is in the Bill. What might crop up as a result of the Bill is another matter.

Mr. Forth: On a point of order, Mr. Deputy Speaker. Without wishing to challenge your ruling, you have the discretion to bear in mind that, through an act of good will, the House has rushed the Bill on its way to this stage. However, this is the only opportunity that the House has had to consider the Bill in any detail. Therefore, will you use your discretion and wisdom in allowing more of a debate than might otherwise be the case?

Mr. Deputy Speaker: I can tell the right hon. Gentleman that I always use my wisdom in matters relating to him. I am not saying that we cannot have a debate—far from it. However, the rules of the House tell me that the debate must be confined to what is in the Bill. If the rules of the House change, I—as the custodian of the rules—will look after them. At the moment, however, we must confine ourselves to the rules of the House.

Mr. Luff: You are an effective guardian of the rules of the House, Mr. Deputy Speaker. Perhaps I have been too generous in giving way to colleagues, which has led me down some alleys of which you may not approve. I will now try to return to my notes, which refer directly to what is in the Bill.
The Criminal Cases Review Commission is included in the Bill. Its task is to examine each case impartially and decide whether it would have a real possibility of succeeding if it were given a further hearing in an appeal court. On the basis of what we have heard about the case of Mr. Hay Gordon, there seems to be every chance that it would have a realistic chance of success. I have no doubt that what the hon. Member for Sunderland, South said about the wishes of the commission was accurate.
Helpfully, the Select Committee on Home Affairs—of which the hon. Member for Sunderland, South is the Chairman—has produced a report on the work of the Criminal Cases Review Commission. The report makes a number of recommendations, one of which refers directly to the Bill. As the Chairman of a Select Committee—I see in the Chamber the Parliamentary Secretary to the Ministry of Agriculture, Fisheries and Food, whom we seek to hold to account—I know there is always a temptation for a Committee to have it both ways and to wish contradictory things.
To an extent, I see that in the first report of the Select Committee on the work of the Criminal Cases Review Commission, which discusses at length the problems of the commission in prioritising its work and the pressure on its resources. Recommendation 6 states:
We accept and support the basic principle that priority is generally given to applications from those in custody.
The case from which the Bill arises involves a gentleman who is not in custody. Mercifully, if the case has been mishandled, he is at liberty, albeit with the stain on his character described by my hon. and learned Friend the Member for Harborough. We have to ask whether it is right to pass the Bill, given the Select Committee's wise view that priority should go to those who are in custody and therefore still suffering the wrong of some miscarriage of justice.
The resources available to the CCRC lie at the heart of our consideration today. I freely admit that, until the hon. Member for Sunderland, South intervened, I was not aware that its resources had been increased. It would be extremely helpful to the House in respect of how it should approach its consideration of the Bill if the Minister told us exactly what resources are available to the commission. The notes on clauses—which have been prepared by the Home Office, not by the hon. Gentleman—show how important that consideration is. They tell us:
Expenditure on reviewing such cases would have to be found within the planned funding of the Commission. Any expenditure elsewhere in the criminal justice system resulting from an application to the Commission under the Bill, or from a decision by the Commission to refer a verdict of guilty but insane to the Court of Appeal, would similarly have to be found within current planned provision.
We have to satisfy ourselves that the case in question, which goes back more than 46 years, is a one-off. Typically, the cases that will be brought before the commission will date back over such a period. Re-examining them at such a late stage would be particularly labour intensive. I am always reluctant to reopen cases of such antiquity. After nearly half a century, it is difficult to go through the background and the evidence to understand the circumstances with clarity. It would clearly be a time-consuming business.

Mr. Forth: Does my hon. Friend agree that not only does that matter have resource implications—that important point may have to be developed—but the relevant material, witnesses, evidence and so on will necessarily be that much less reliable, given the age of the cases? Is not that a factor that we shall all have to bear in mind as we consider the efficacy of the Bill?

Mr. Luff: Characteristically, my right hon. Friend makes a point that I was seeking to make rather better than I would have done. He is right and that is one of the central challenges for the House during its consideration of the Bill. The Minister must satisfy us that the case in question is one of only a very small group. Is her estimate of the number of cases three or four, which was the estimate made by the hon. Member for Sunderland, South when he opened his remarks? If her estimate is 10, 12 or 15, the nature of our consideration would have to change and a much sharper problem would be posed for the CCRC.

Mr. Mullin: I do not want to prolong this agony. I did not say that I knew of three or four cases; I said that I knew of one and that I had heard someone say that there might be two. It is very unlikely that there will be as many as three or four and it is perfectly possible that the case in question will be the only one. The hon. Gentleman talked about assurances that I have given. The assurances that I have given on miscarriages of justice over the years have largely proved reliable.

Mr. Luff: With characteristic modesty, the hon. Gentleman sets out for the House his track record on these matters; I think he has a great deal about which to be modest. He has a good reputation on these issues and I congratulate him on it, but the Bill has not been scrutinised thoroughly elsewhere, so we need to know what assessment the Government have made of the likely work load on the commission that will flow from the Bill. I am told that the commission is adamant that it will not sacrifice thoroughness for the sake of speed. It is right to take that view, but I fear that achieving thoroughness in such a case could be particularly demanding.
In November 1998, the Home Secretary rejected the bid for £1.3 million additional funding. We are told that additional money has been forthcoming, although my information was that the only money available was for information technology. It appears that, as well as capital funding, revenue funding will be available for additional caseworkers. That is good, because the commission is clearly doing important work. I would certainly want my constituents to have access to it in cases of miscarriage of justice. However, the statistics are quite alarming and it is important that the House is aware of them.
I think that my most recent information comes from a memorandum to the Home Affairs Committee from the CCRC; if that is not the case, I apologise to the House. The backlog of more than 1,000 cases is growing at a rate of more than one a day and, by definition, the cases that the commission considers are serious. The backlog is huge and each and every case is a matter of considerable concern to the individual affected by it. Standing here in the Chamber today, I have no way of prioritising the case of Mr. Iain Hay Gordon over those other 1,000 cases.
In its evidence to the Home Affairs Committee last December, the CCRC said:
The October 1997 memorandum to the Committee noted the very severe problems that had been posed by the CCRC's initial caseload, but hoped that the case completion rate might soon reach the case intake rate.
In other words, the commission's waiting list—to use a topical term from another area of the public policy debate—is growing steadily. The CCRC went on to say that the
CCRC casework experience to date, and caseflow analysis, combine to demonstrate clearly that the CCRC cannot achieve casework breakeven, and minimise the case accumulation, on any reasonable timescale unless substantially increased resources are allocated to it.

Mrs. Fyfe: The hon. Gentleman has already been advised that it is not our business to offer the CCRC any order of priority for its work. We are here merely to pass a necessary amendment to the Bill arising from an error that was made at an earlier stage. It is as simple as that.

Mr. Luff: I admire the way in which the hon. Lady is fighting for the interests of her constituent. I want to be persuaded that the Bill should be enacted because her constituent should have the justice that he is lacking and I hear what she says, but the message sent out at the end of his speech by the hon. Member for Sunderland, South was that the commission should give that case priority. The nature of the case suggests to me that he may be right—I do not know enough about the cases before the CCRC to reach that judgment—but if similar cases arose, we would logically have to support the commission giving them priority over other cases, which may be of great importance.

Mr. Maclean: Surely there is another valid point. We are being asked to pass the Bill using a slightly expedited procedure. There has been no debate on Second Reading. The CCRC may not be able to consider the case for three years—when it has cleared its existing backlog—which is an argument for suggesting that the Bill's provisions could be part of a Government Bill next year. We would then have more time to consider such a Bill clause by clause.

Mr. Luff: I hear what my right hon. Friend says, but I do not share that view, although I understand why he has expressed it. I want the Minister to give a clear explanation of why my fears are misplaced. The House would then be able to give the Bill speedy passage, rather than delaying it unnecessarily. I am sure that the hon. Member for Maryhill does not want her constituent to wait another year, even for the opportunity to put his case to the commission. Subject to the assurances that we receive from the Minister, I hope that we can give the Bill speedy progress, but it is important that we understand the extent of the problems that the commission faces as we do that.
On 16 December 1998, The Guardian said:
MPs who fear a repeat of the Child Support Agency shambles are to summon Home Office Ministers to explain why they refused a plea for an extra £1.3 million for the Criminal Cases Review Commission to attack the mounting backlog.
I do not know whether those words are a briefing from a member of the Home Affairs Committee or the florid prose of The Guardian, but this is clearly a matter of considerable concern to the Committee and it is right to be concerned.
The Bill centres on the Iain Hay Gordon case. We are informed that his may be one of two, three, four, or however many cases, and we have already debated that matter. I have looked at the background to the case and I understand why the hon. Member for Maryhill is so concerned about it. I shall not weary the House with an account of it, because that would clearly be an inappropriate use of our time. I was, however, slightly amused by an article in The Herald of 27 April last year, which states:
A political row is brewing over the refusal of the Criminal Cases Review Commission to begin an investigation into an alleged miscarriage in the case of Glasgow man Iain Gordon, 66…Mr. Chris Mullin, the veteran campaigner against injustice and chairman of the Commons Home Affairs Select Committee, has written to commission chairman Sir Frederick Crawford to demand an explanation for the commission's handling of the case…Mr. Mullin, Labour MP for Sunderland South, called for Sir Frederick's resignation when it was revealed last August that the £88,000-a-year chairman of the new body was a freemason in

the Gordon case. Mr. Mullin has accused him of appearing to have taken 'a narrow view of your responsibilities and one that is certainly at odds with the intention of Parliament when the commission was established'.

Mr. Mullin: I cannot be responsible for what is in The Herald, but I certainly did not call for Sir Frederick's resignation. I did, at the time of his appointment, express surprise that a Birmingham freemason had been put in charge of this particularly sensitive commission, but Sir Frederick has done a pretty good job during his two years in office and I have no complaint about him.

Mr. Luff: I am not and have never been a freemason, but I am suspicious of the hon. Gentleman's suspicion of freemasons. I was, however, delighted to hear his tribute to Sir Frederick and I am sure that he will be pleased as well. A degree of guilt probably lingers in the hon. Gentleman's mind. It is excellent that he has sought to expunge it by presenting the Bill and recognising that the commission was not guilty of failing to do its duty, but simply did not have the statutory ability to perform that duty.
Let me return to the fundamental point. The Iain Hay Gordon case provides us with a useful example, but we should take it only as an illustration. We should not see it as our reason for acting; we must act on principle. The question of whether Iain Hay Gordon was or was not the victim of a miscarriage of justice is not for the House to consider. It is a matter for the due process that will follow if the Bill is passed. The question that we should consider is the question of access to the powers of the commission. I believe that the House should grant such access only if it is absolutely clear that an intolerable burden will not be placed on the commission.
Is this a single case? Single cases are regularly used to shape law in this place, but I feel that they should be used only to illustrate it. Another question—one that the Minister should answer—is this: what precedent are we setting if we pass the Bill? Are there other lacunae in the wording of the legislation that established the Criminal Cases Review Commission? Are there other issues that need to be addressed? Will passing the Bill give rise to a raft of private Members' Bills dealing with other inadequacies, or is this, as it were, a one-off case of a one-off case?

Mr. Maclean: Nearly everyone who has spoken today has said that the failure to include the terminology "guilty but insane" was clearly due to a drafting error. I have heard no evidence so far that that is so. Perhaps the omission was a deliberate act on the part of the draftsmen or the Ministers responsible. I hope that the Minister will be able to reassure us that it was a technical error and not a deliberate act on the part of this Parliament.

Mr. Luff: My right hon. Friend leads me neatly to my next and—the House will be relieved to hear—final point, which concerns retrospectivity. This is retrospective legislation. Just as hard cases make bad law and the House must be suspicious of them, retrospective cases often cause difficulty, for precisely the reasons that my right hon. Friend has just given. What was in the mind of Parliament when the legislation was passed? Was what it did intentional or unintentional?
Thornton's "Legislative Drafting" defines retrospectivity thus:
It is desirable that wherever possible a statute should indicate in express and unmistakable terms whether (and, if so, how far) or not it is intended to be retrospective…Retrospective laws offend against the general principle that legislation intended to regulate human conduct ought to deal with future acts and ought not to change the character of past transactions carried upon the faith of existing law".
I know that the Home Secretary shares that view. Almost exactly 13 years ago, during a debate on the Rate Support Grant Bill, the right hon. Gentleman—then an Opposition Member—said:
The Government have become slap happy in the use of retrospective legislation."—[0fficial Report, 23 June 1986; Vol. 100, c. 86.]
As my right hon. Friend the Member for Penrith and The Border (Mr. Maclean) said, it must be clear that we are simply correcting an innocent drafting error, and that there is no matter of substance behind the omission that is identified by the Iain Hay Gordon case.
I expect the Bill to be given a Third Reading today. I suspect that the mood of the House is in favour of it, subject to the assurances that the Minister can give. Notwithstanding what the hon. Member for Sunderland, South said, however, the commission must set priorities for itself. However indignant hon. Members may feel about individual cases, it is for the commission to make the difficult judgments about how it should use its still limited resources in the face of a mounting case load.

Mr. Eric Forth: I shall continue in the spirit of the excellent speech of my hon. Friend the Member for Mid-Worcestershire (Mr. Luff). A number of points deserve our consideration, given the rather unusual route by which the Bill has reached this stage. If anything, it is even more incumbent on us than it might otherwise be to ensure that we are satisfied about those points before allowing it to proceed. Because it has come from the other place, this is the last opportunity for it to be scrutinised in a considered way and in detail, and for us to discharge our responsibility as one of the Houses of Parliament.
The Bill was considered briefly in the other place. That is no criticism—far be it for me to criticise the methods adopted in another place—but I think it fair to say that the consideration was fairly brief. I think that it is also fair to say that, even at this early stage, a number of important points have emerged. It may have surprised hon. Members that what at first blush appeared to be a Bill of modest scope is already raising significant issues of principle, and I think it incumbent on us to satisfy ourselves about those before we proceed too much further.
One of those points, which my hon. Friend the Member for Mid-Worcestershire touched on, has bothered me considerably. I refer to the vexed question of whether it is legitimate or desirable to legislate on the basis of one known case, or even a very limited number of known cases. It is an age-old question, which has confronted us as a legislature many times over a long period; but that does not diminished its importance. What we are really saying is that, if we are worried about a single case and the existing law does not cover that case adequately, we should—as the hon. Member for Sunderland, South

(Mr. Mullin) put it, eloquently and, he thought, persuasively—move as quickly as possible to change the law in order to acknowledge the problem.
That is, in a sense, self-evident, as far as it goes. The danger is that, in some instances, changing the law to deal with one case could put at risk the principles of justice, access to justice and the balance of justice in other cases. We must satisfy ourselves beyond reasonable doubt that that will not happen.

Mr. Maclean: Is my right hon. Friend slightly mystified by the fact that the other place was keen for the Bill to proceed quickly, although it twice rejected a similarly retrospective measure involving only one or two individuals—the war crimes legislation? We had to pass it by means of the Parliament Act.

Mr. Deputy Speaker: Order. We should not start discussing other legislation.

Mr. Maclean: I was not—

Mr. Deputy Speaker: I was under the impression that the right hon. Gentleman was. I apologise. Let me, however, reinforce my ruling that we are not going to go into other legislation.

Mr. Forth: And I shall not answer my right hon. Friend's retrospectivity point now, Mr. Deputy Speaker. I shall deal with it in a moment. Looking at my notes, I find that that formed the second of the points that I wish to cover in my brief contribution, but I want to do justice to the earlier point that I was making. I do not want to weary the House with it, but it is important. I shall answer myself, in a sense, and therefore satisfy, I hope, other Members.
The question I pose is whether it is legitimate or desirable to make a change in the law based on a single known case. To my surprise, when the question was posed to the Library, we got back a considerable list of such cases. I shall not weary the House with the entire list; a few examples will suffice.
The one that all colleagues will remember with affection is the Peerage Act 1963, which arose from the battle of the right hon. Member for Chesterfield (Mr. Benn) to ensure that he was able to renounce his peerage and take his elected place in the House. That is one obvious case. I skip through some of the others. The law was changed in the Grant v. Borg case, which involved overstaying immigrants; after the House of Lords judgment in the Regina v. Preddy case, which involved mortgage fraud and acquiring credit by deception; and in the Thai Trading Company v. Taylor, case, which involved conditional fees.
I make that point only to dispel any doubts that colleagues may have about the respectability, if I may put it that way, of basing a change in the law on one single known case. Therefore, in that sense, I am persuaded, but there is a lingering doubt, which we should bear in mind before we finally dispose of the Bill: that there is no likely risk of the change proposed in the Bill having an adverse effect on our judicial system, access to justice or the probability of justice being done.
Given the particular circumstances of the Bill, its thrust and content, that risk is minimal, or probably zero—of that I am fairly satisfied. Given our duty and responsibility in such cases to consider whether there is a danger or risk, I am satisfied. I mentioned only a few of the precedents because I did not want to weary the House.

Mr. Maclean: I think that my right hon. Friend could be in danger of inadvertently misleading himself, not that he would ever mislead the House. I have studied the precedents, too. Some of the cases that he has mentioned have not resulted in specific legislation, Bills or Acts, but have merely hastened Governments to make amending clauses in other legislation that is going through the House. That happened with the Access to Justice Bill after the R. V. Khan case; it speeded up Government legislation. However, there are very few cases—I am familiar only with the Viscount Stansgate case—of an Act of Parliament being introduced for an individual.

Mr. Deputy Speaker: Order. We would extend the debate if we went into those matters.

Mr. Forth: I am grateful, Mr. Deputy Speaker. You have let me off the hook. When I am under scrutiny from my right hon. Friend the Member for Penrith and The Border (Mr. Maclean), I am always grateful for any escape route that is offered to me, which I gratefully accept. That brings me readily to the next point that I wanted to cover: retrospectivity. Again, one has to be careful, but there is a duty on us to consider how far one is entitled, or is under a duty, to seek to go back in terms of legislation.
Throughout my studies at university, as far as I can remember them now, and even on coming to the House, I was told that we did not legislate retrospectively here. That was my firmly held view. I clung to that. I thought it an important principle until I got here. Then I found, as one does with many things—I am sure that right hon. and hon. Members will share the experience—that those things that we thought were established, nay, almost sacred principles of the House of Commons and, indeed, of our unwritten constitution, were nothing of the kind, and that we live in a flexible and fluid world at Westminster.
So even the principle of retrospectivity, which I thought was the foundation stone of our constitution, unwritten as it is, is not quite what it seems. The principle that overrides even that one is pragmatism. The other, which I think is still the case, although even that is in doubt now, is that no one Parliament can bind another.
An interesting issue is raised by the constitutional changes that have just been made. There is a question as to whether—

Mr. Deputy Speaker: Order. The right hon. Gentleman will push the boat out a bit too far if he goes into constitutional matters. It is a Third Reading debate on the Bill.

Mr. Forth: I am grateful. I was getting a bit carried away with my argument about retrospection. I had better limit it, as you, Mr. Deputy Speaker, rightly point out, to the Bill itself.
Again, there are precedents. At the risk of provoking my right hon. Friend the Member for Penrith and The Border again, I asked for examples of retrospective legislation. I have a list, but I am now quite nervous about quoting from it in case he picks me up on it. Suffice it to say that the research that I have commissioned suggests that it is permissible, and there are precedents for a retrospective approach when it is deemed justifiable.
The promoter of the Bill said in his admirable speech that, in a sense, that was the whole justification for the Bill. It is based on, we think, a single case. We are not sure; there may be a few others. In a sense, the whole point of the Bill is to look back, to look at the particular circumstances that prevailed at the time, to identify the lacuna, and then to say, "We will now legislate in 1999 for something that happened a very long time ago and for a glitch, or gap in the law, which has only fairly recently emerged, to the disadvantage of one known individual, although there may be others."

Mr. Maclean: My right hon. Friend is correct. There have been numerous examples of retrospective legislation. I had the privilege of studying the list as well, but I could not find any examples relating to individuals. The examples related to teachers' pay and conditions, vaccine-damaged children and London Regional Transport—I could not find one case of retrospective legislation dealing with a single individual.

Mr. Deputy Speaker: Order. I keep coming back to it: we must concern ourselves with the Third Reading of the Bill.

Mr. Forth: I am grateful. That brings me neatly to the issue that was touched on by my hon. Friend the Member for Mid-Worcestershire, which I will characterise as antiquity and, therefore, efficacy. He touched on the point in a different way, admittedly.

Mr. Graham Brady: Before my right hon. Friend moves from the point about retrospection: I have listened to his arguments with interest, as I have to the arguments of other Conservative Members, but I am not really convinced. Surely any matter of law that deals with matters of appeal is, by its very nature, retrospective. In that instance, he cannot hold it against legislation dealing with appeal matters that it is retrospective. Is it not inevitable?

Mr. Forth: That is partly the case, but there is a problem, which I am coming on to; I hope that my hon. Friend will bear with me. Surely, there is one thing that we have to consider, because we are talking about a proper judicial process, not just a quasi-judicial process. One of the factors that it is incumbent on us to consider with great seriousness is the extent to which we think it efficacious and viable to allow a review to take place, when, by definition—we are defining it in this case, or it is defined for us—the material factors will be so far in the distant past as to be possibly unreliable. That is


beyond doubt. As the hon. Member for Sunderland, South pointed out, the Bill arose from events a very long time ago.

Mr. Desmond Swayne: Is it not for the review to discover whether the facts are uncertain, or too long ago? It surely should not be denied the opportunity to consider that case.

Mr. Forth: I am grateful to my hon. Friend, but I do not think it is as obvious as he suggests. I had the same problem in respect of the war crimes legislation some years ago and I would contend that when one is dealing with events in the distant past, the evidence becomes less reliable. As my hon. Friend points out, there is an element of judgment and we are making precisely that judgment today. In making this proposed change in the law and inviting a review process which inevitably will have to deal with events in the distant past, we must consider how comfortable we are with the likelihood that that will lead to a proper process of justice.
I hope that the hon. Member for Sunderland, South will sum up the debate. I could almost write his speech for him now—or at least part of it. I suspect that he will say that he has been involved in a number of cases that deal with exactly this matter. That might set my mind at rest as it is an important factor.
Another point that I wish to make in my preliminary remarks involves money. I address these comments mainly to the Minister, who I hope will seek to catch your eye, Mr. Deputy Speaker. We look forward to her contribution as it will help to set in context a number of issues that have arisen in the debate, and no doubt will arise again. However, this is a particular matter for the Minister and I am alerting her and any others who may be in a position to assist.
A key element in the debate are the additional responsibilities that the Bill places on the Criminal Cases Review Commission. It has been admitted—rightly, in my view—that the House has no influence on the priority of the work of the CCRC. That is a matter for its judgment. However, knowing a little about these matters, I suspect that the CCRC could possibly be influenced by the Minister. It might even be influenced by reading these proceedings. It is obviously the wish of the hon. Member for Glasgow, Maryhill (Mrs. Fyfe) that it should be so influenced. No doubt she has assiduously made her own representations in that regard and I wish her well with them. However, I wish to make a narrow point about money and staff.
My information is that the commission has calculated that it needs something like 60 case review managers in order to process new cases and reduce the backlog. It has been claimed that the Government have given extra money to the CCRC. In February this year the Government announced plans to give the CCRC an extra £1.2 million to employ more caseworkers.

Mr. Deputy Speaker: Order. This is a debate about a limited extension of the role of the Criminal Cases Review Commission. It is not a general debate on the work of the commission.

Mr. Forth: Thank you, Mr. Deputy Speaker. You have enabled me to move on to the substance of my remarks, having dealt with the preliminaries. I shall now turn to the Bill itself, and I am sure that you will approve of my doing that. [Interruption.]

Mrs. Fyfe: On a point of order, Mr. Deputy Speaker. I do not know what is amusing some Opposition Members, but I do not share their amusement, given that they are discussing the human rights of a constituent of mine. Perhaps they could be brought to order, or bring themselves to order.

Mr. Deputy Speaker: That is not, strictly speaking, a matter for the Chair, but I am sure that right hon. and hon. Members will take on board what the hon. Lady has said.

Mr. Forth: With the greatest charity, let me say that if the hon. Lady were here more often on a Friday she would realise that our proceedings are often a little more relaxed and that that often allows us to proceed on a consensual basis. I would regret that consensus and good spirit being interrupted in any way and I hope that the hon. Lady would not be party to that.

Miss Anne McIntosh: Let me put the mind of the hon. Member for Glasgow, Maryhill (Mrs. Fyfe) at rest. Many of us are here today because we share her concern for her constituent. That is why we support the Bill.

Mr. Forth: I am grateful to my hon. Friend, who reinforces what I said. The way in which the House works on Fridays and deals with private Members' Bills is a little different from the normal run of events, as you know better than almost any of us, Mr. Deputy Speaker.

Mr. Maclean: I would merely point out that on the last occasion the Bill was before the House and those of us who are always here on Fridays expedited its passage through to this stage, I do not recall the hon. Member for Glasgow, Maryhill (Mrs. Fyfe) being here, worried about her constituent's rights.

Mr. Deputy Speaker: Order. I am having difficulty in persuading hon. Members to speak to the Third Reading of the Bill. We cannot debate who was here last Friday or the previous Friday.

Mr. Forth: Indeed, Mr. Deputy Speaker. I shall now get stuck into the Bill itself. I can reassure you, Mr. Deputy Speaker, and the hon. Member for Maryhill that it will not take long.
My references to the Bill relate to my introductory remarks. Clause 1(1) states that
the Criminal Cases Review Commission may at any time refer the verdict to the Court of Appeal if subsection (2) below applies.
The Bill gives a very wide remit to the CCRC. It is important that we acknowledge that we are broadening the original remit of the commission very widely indeed.
Another concern on which I would welcome the comments of the Minister or the promoter of the Bill—and probably both—relates to clause 1(2)(b). Subsection (2) states:
This subsection applies if the Commission consider that there is a real possibility that the verdict would not be upheld were the reference to be made and…it appears to the Commission that there are exceptional circumstances which justify the making of the reference.
That is an extremely wide and permissive phrase. It crosses my mind to question whether it is wise to give that degree of latitude. As we all know, exceptional circumstances can be defined in almost any way. There is no limitation and no further reference to that provision. It simply gives the commission the power to make a judgment as to what exceptional circumstances are and links that to its ability to make a reference.
When we give such wide powers, we must be satisfied that there is no possibility that they could be misused. I have no reason to suppose that they would be, but there is always a possibility of that when we give extraordinarily wide powers to what I would—perhaps unfairly—characterise as a bureaucracy.

Mr. Maclean: So far this morning we have been told that on every occasion a simple error of drafting in the original legislation failed to include the terminology "guilty, but insane". This Bill, however, gives the commission powers to refer cases in "exceptional circumstances". We need to know from the Minister whether that provision is widening the existing powers of the commission to deal with other cases that were covered in the Criminal Appeal Act 1995.

Mr. Forth: Indeed. My only regret about today's proceedings is that we have been unable to look a little more widely at the relationship between the parts of the law that deal with guilt and insanity. I should have preferred that, as I have some rather distinctive views on the issue. However, it is probably just as well for me that I am unable today to express those views at great length, as they might be regarded as somewhat eccentric—but then, I am quite used to that.
Nevertheless—under your wise and correct guidance, Mr. Deputy Speaker—we are not allowed to range that little bit more widely, which I do regret, although there will perhaps be another occasion on which we are able to do so.
Given that the issue—the whole matter of how far insanity may be regarded as an exculpatory or mitigating factor—has always been such a contentious one in law, and given how much the Bill touches on that issue, it is, in retrospect, perhaps slightly regrettable that we did not have a full-blown Second Reading debate in which we could have ranged across the issue more widely, or detailed consideration in Committee. However, the House made a different judgment on the matter, and I do not want to rake over that.
I can well appreciate—the hon. Member for Maryhill has left us in no doubt about it—the strength of feeling on the matter relating to her constituent and perhaps to one or two other cases. I have been able to satisfy myself

on some of the matters that worried me about extrapolating from individual cases and about retrospection.
I have, however, some lingering doubts about the Bill. The key—other than the introductory speech of the hon. Member for Sunderland, South, which was rather brief—to settling those doubts will be the Minister's reply, and then the final reply to the debate. I hope that those replies will be able to persuade me that my lingering doubts could be dispelled, and that the House should give the Bill our final approval.
Today's debate is the final stage in the Bill's passage, and that is what makes it so important. There will be no going back from our action today or further opportunities to debate the Bill—this is it. If we are to change law in this limited but important way, we must be absolutely satisfied beyond reasonable doubt. I look forward to receiving such satisfaction from the Minister and from the final reply, so that I may join other hon. Members in allowing the Bill to be passed.

Mr. Edward Leigh: The debate has been useful. Some interesting speeches have dealt with, first, the amount of parliamentary time devoted to this type of legislation; secondly, the historical precedents of single-case legislation; and thirdly, some interesting arguments on retrospective legislation and how the Bill falls into the mould of previous legislation that Parliament has hitherto thought it right and just to pass. I may well have a few more remarks on those issues, but, as they have already been dealt with extensively in the debate, I do not want the main substance of my arguments to dwell on them.
Colleagues have referred to examples of single-case legislation—I shall not weary the House by referring again to them—but each of those examples had a wider application. Although each of those cases had been brought to the House's attention because of a single hard case, in every one in which Parliament thought it right to act not only one individual, but a wider public benefited from that action. The famous case of the right hon. Member for Chesterfield (Mr. Benn) is an obvious example of that. I think that the Minister really has to address that issue when replying to the debate.
I do not claim to be any great expert on precedent in the House—but we may be embarking on a quite unusual step: passing an Act of Parliament on the basis of a single case, benefiting only that individual. I do not think that anyone speaking in the debate so far has been able to allude to other people who are disadvantaged by current law but will benefit from the Bill, if it is passed. The Bill is, therefore, very much an example of single-case legislation helping a single individual. That is an important, even constitutional, point to which Ministers, in supporting the Bill, will have to refer.
The Bill is very clear on its central point. Clause 1 states:
Where a verdict was returned in England and Wales or Northern Ireland to the effect that a person was guilty of the act or omission charged against him but was insane at the time, the Criminal Cases Review Commission may at any time refer the verdict to the Court of Appeal".


The Bill goes on, in clause 2(2), to state:
In their application to such a reference by virtue of subsection (1) above, sections 13 and 14 of that Act shall have effect—
(a) as if references to the verdict of not guilty by reason of insanity were to the verdict referred under section 1(1) above".
In passing the Bill, therefore, we shall be saying that the fact that, all those years ago, the jury in the particular case returned a verdict of guilty but insane should now be treated by the courts as if the jury had returned a verdict of not guilty by reason of insanity. So far, all the arguments that we have heard from the hon. Member for Sunderland, South (Mr. Mullin), and which were adduced in the other place, seem to suggest that there is no difference between those two concepts; they are the same—and that if a jury were considering those matters now, all these years later, it would feel that there was no difference between the two concepts. Before the House passes the Bill, we have to be absolutely convinced that those arguments are true.
There has been much learned debate on the nature of insanity, a matter that has exercised profound legal experts. From my reading of the issues surrounding the specific case, however, there has been no fixed outcome of that learned debate, or definite conclusion on the nature of insanity as it applies to criminal cases. An article by R. D. MacKay, for example, entitled "Mental Condition Defences in the Criminal Law", states:
Perhaps more than any other area of the criminal law, the insanity defence generates heated discussion and debate. The literature discussing the insanity plea is immense, and reform proposals are continuously formulated. In short, there is an ongoing debate about whether the law should recognise that some crazy people ought not to be punished for behaviour which would normally be adjudged criminal. This debate, which tends to ebb and flow in the light of notorious cases, is one which deserves to be within the public domain since the underlying question of whether it is appropriate to excuse a mentally abnormal offender is a question with fundamental moral and social implications.
That is indeed true. If we were to pass the Bill, we should perhaps be entering into a new sphere of the debate on criminal insanity.
Those matters were considered quite fully in the report of the royal commission on capital punishment, which reported between 1949 and 1953, Cmnd. 8932. The commission found that only those who have the capacity to act rationally should be held accountable for criminal acts, and that an individual's capacity is sometimes interfered with because of mental illness, which may in turn mean that his behaviour can no longer be viewed as rational. The difficulty is in deciding at which stage such a conclusion may be reached.
I should like, in general terms, to deal with the debate in the other place. We have been enormously helped, as we often are in debates that refer to detailed aspects of the criminal law, by the remarks of the Lords of Appeal, who bring a great deal of knowledge to these matters. Their Lordships have reminded us that the jury in the 1953 case returned a special verdict, under the Trial of Lunatics Act 1883, that the defendant was guilty but insane.
Sir Louis Blom-Cooper, acting on behalf of Mr. Hay Gordon—without going into too much detail, this was a case before the Court of Appeal claiming that there had clearly been a drafting error and that Parliament, in enacting subsequent legislation, must have believed that

the two states of mind were the same—said that Parliament, in enacting the words of section 10(6) of the 1995 Act,
was not guilty by reason of insanity
intended to include the phrase "guilty but insane". Sir Louis's thesis was that the two phrases were interchangeable in essence and intent, and that the change from the first to the second and back again was no more than terminological.
Their lordships seemed to agree with that view. Lord Ackner, who opened the debate in a characteristically forthright and cogent speech, said that this was
a simple error of drafting, but it has created a long-standing and tragic absurdity"—[Official Report, House of Lords£ 23 March 1999; Vol. 598, c. 1255.]
and that it was quite wrong that Mr. Hay Gordon could not have his case investigated. He therefore believed that the law should be changed. As a result, we have this Bill before us.
All that is clear. We are being asked today to consider this matter as a minor drafting Bill. Nobody, however, has gone back to the original case and I am concerned that we are now dealing with matters that happened a long time ago. We are not sitting in a jury at that trial; we cannot see witnesses and judge their evidence. Is it right, therefore, for us to form a judgment? You, Mr. Deputy Speaker, may say that we do not have to form a judgment—

Mr. Mullin: On a point of order, Mr. Deputy Speaker. Are we supposed to be making a judgment on the Iain Hay Gordon case? That is what the hon. Member for Gainsborough (Mr. Leigh) appears to be inviting us to do. Will you invite him to return to the subject of the debate?

Mr. Deputy Speaker: I have already ruled that the debate should be narrow and tied to Third Reading. On the summary notes that I received, the case of Mr. Iain Hay Gordon was mentioned, so I do not mind the case being mentioned, but it should not be discussed at length.

Mr. Leigh: I was deliberately pointing out that we are not equipped to discuss whether Mr. Hay Gordon was innocent or guilty. I was trying to draw the House's attention to a point that is central to the Bill. The jury heard all the evidence and came to the carefully considered view that the defendant was guilty of the offence, but was insane. We must convince ourselves that that is no different from finding a verdict that he was not guilty by reason of insanity.
That raises some interesting issues. Surely the whole point of the insanity defence is that the defendant is incapable of mens rea. He is incapable of having a guilty mind. Therefore, if his counsel comes to court and pleads that he is insane, the jury does not have to consider in detail whether he was guilty of the offence, because that is irrelevant. He was incapable of having a guilty mind, and all criminal offences—not civil offences—involve the concept of a guilty mind. Once the counsel convinces the judge that the defendant is insane, that is the end of the proceedings.
Perhaps Parliament, in its wisdom in 1883, when it devised the original concept of guilty but insane, had before it a third way: the jury could conclude that the defendant had committed the offence—in this case, he had stabbed a young woman about 37 times—

Mr. Deputy Speaker: Order. The House does not have the authority to re-try a case, especially this morning. We are simply allowing the proper judicial services to do so. We cannot, therefore, concentrate on whether the person in question carried out the acts to which the hon. Gentleman refers. That is for someone else to do.

Mr. Leigh: I was saying that by way of illustration, because I am trying to develop the concept of exactly what Parliament had in mind in 1883 when it introduced the original legislation.

Mr. Deputy Speaker: Order. What Parliament had in its mind in 1883 I would not know. What I do know is that we are supposed to be discussing the Third Reading of the Bill. The hon. Gentleman probably heard me rule that we must keep to the narrow content of the Bill. We cannot extend the argument beyond that.

Mr. Leigh: I shall stop dealing with the facts surrounding the 1953 case. I simply suggest that, given all the arguments about the dangers inherent in Parliament introducing retrospective legislation, we should not instantly conclude that we are discussing a mere drafting error. We should conclude that what happened all those years ago was—possibly, we have no idea—in accordance with the facts as the jury understood them. Now, in introducing retrospective legislation, we are reversing the finding of that jury, which had good reason for acting as it did. So long as Parliament is aware of that, that is all right. We must be aware that it is a major step.
Some inflammatory articles have been written in The Guardian and The Scotsman. What has not been pointed out, however, is that the articles were based on the fact that Mr. Hay Gordon was innocent and that, therefore, his family and the judge must have been engaged in a cover-up. That is an appalling smear on the judge, who, presumably, is long since dead. The publicity surrounding this case has been most unfortunate. I wish that, when people promote this sort of legislation—

Mr. Deputy Speaker: Order. I do not like to keep intervening on the hon. Gentleman, but he is making it difficult for me. The Bill does not mention the publicity surrounding the Hay Gordon case, so the hon. Gentleman cannot discuss the matter. This is supposed to be a Third Reading debate.

Mr. Leigh: I knew when I made that point that I was straying, but I wanted to get it off my chest because I felt so strongly about it.
Having read very carefully this short Bill and the literature surrounding it, my clear conclusion is that it should become law, because there is a real possibility that an injustice was done all those years ago. It is clear from what their lordships said—they know more about it than we do—that there is no other way of righting the wrong.
However, Parliament should be aware that it might be a unique piece of legislation and that there may be perfectly cogent reasons why the jury acted as it did.
We may be introducing retrospective legislation changing the verdict in a single case. That may not matter too much, because we will not make the final decision. We will simply enact the Bill, and the Criminal Cases Review Commission will be able to range widely over all the issues in a way that you, Mr. Deputy Speaker, have rightly ruled out of order for us today. We must now pass the heavy burden of reopening such old questions, and we should be fully aware of the wide-ranging nature of what we are doing.

The Parliamentary Under-Secretary of State for the Home Department (Kate Hoey): I am very grateful to my hon. Friend the Member for Sunderland, South (Mr. Mullin) for his stewardship of the Bill, and I pay tribute to Lord Ackner, who introduced it in the other place, and to Lord Portsmouth, who has long been active in promoting the change that it will accomplish.
I am grateful, too, for the contributions that we have heard this morning. Even though it is a Friday and we have a large number of Bills to get through, we should remember that the Bill had no Second Reading debate in the House, so there are genuine concerns to be dealt with. I hope that the debate has been useful and that we can alleviate any lingering fears.
The Trial of Lunatics Act 1883 introduced a special verdict that the accused was guilty of the act charged against him, but was insane when he did that act. That verdict is known as guilty but insane. Since 1914, the courts have held that the verdict is technically an acquittal, and thus that there is no right of appeal against it. The Mental Health Act (Northern Ireland) 1961 replaced the special verdict with a finding of not guilty on the ground of insanity.
For England and Wales, the Criminal Procedure (Insanity) Act 1964 amended the 1883 Act so that the special verdict became one of not guilty by reason of insanity. In effect, guilty but insane was merely renamed, with the important addition that a right of appeal was introduced against the new finding and verdict; but that was not applied retrospectively to verdicts of guilty but insane.

Mr. Leigh: Is it the Minister's understanding that when a jury returns a verdict of not guilty by reason of insanity, it is saying that the defendant is guilty of carrying out the offence but was insane at the time, or is it refusing to come to a conclusion about whether the defendant is guilty, because it does not matter as he was insane?

Kate Hoey: The crucial thing about the 1964 Act is that it introduced a right of appeal. The Bill is intended to ensure that people who were subject to the verdict before 1964—the one that linked insanity and guilt—can appeal.
The Home Secretary and the Secretary of State for Northern Ireland were given a power to refer the new verdict and finding, but not the old verdict of guilty but insane, back to the Court of Appeal. Under the Criminal Appeal Act 1995, enacted by the previous Government, that power was transferred to the Criminal Cases Review Commission without alteration.
The opportunity to make the change that we are now making should really have been taken in 1995. I criticise no one for that. The right hon. Member for Penrith and The Border (Mr. Maclean) was a Home Office Minister at the time, but he was not personally responsible for the matter, and my hon. Friend the Member for Sunderland, South was involved in setting up the commission. We did not take the opportunity simply because no one thought of it. That is why we are trying to enact the Bill now.

Mr. Leigh: With respect, the Minister has not answered my question. I fully understand that if one is found not guilty by reason of insanity or guilty but insane one should have the right of appeal. We are all agreed on that. My question is whether it is the Government's view that the two verdicts are exactly equivalent.

Kate Hoey: I hope that I can help the hon. Gentleman. Precisely the same facts must be found for guilty but insane as for not guilty by reason of insanity.

Mr. Brady: If a verdict of guilty but insane is referred to appeal, could the insane element alone be struck out, leaving the guilty element, or would both parts necessarily be struck out? If an appeal is against not guilty by reason of insanity and the insanity element is struck out, the not guilty element remains. There seems to be a real difference.

Kate Hoey: I am not a lawyer, thank goodness. The Bill is not about such technicalities. If I am advised of a definitive response to the hon. Gentleman's question, I will let him know today. Otherwise, I shall have to write to him.
As my hon. Friend the Member for Glasgow, Maryhill (Mrs. Fyfe) said, Mr. Iain Hay Gordon was found guilty but insane in Northern Ireland in 1953 of the murder of 19-year-old Patricia Curran, the daughter of a senior High Court judge. I was a little girl at the time and that terrible murder took place only a few miles from my family home. I remember the enormous amount of publicity and talk, and there was always something unsatisfactory about the case.
Mr. Hay Gordon was committed to a hospital, where he remained until his discharge into the care of his parents in Scotland in 1960. After the trial, a campaign to clear his name began. At the beginning of 1998, an application was made to the Criminal Cases Review Commission to refer the case to the Court of Appeal. In June 1998, the Court of Appeal in Northern Ireland ruled that the 1995 Act did not allow the commission to refer the verdict of guilty but insane. Of course, its reasoning would have led to the same conclusion in respect of a verdict returned in England or Wales.
It is precisely because the CCRC had to do some work on the case so as to refer it to the Northern Ireland Court of Appeal that the commission already knew something about it. Hon. Members are right to say that the CCRC chooses its priorities for dealing with cases, but, as Mr. Iain Hay Gordon's Member of Parliament has

pointed out, presumably the commission will consider the case and reflect on it in the light of its history and special circumstances.

Miss McIntosh: The point that concerns me under the Bill is that it does not clarify sufficiently what level of proof and evidence has to be brought on the particular point that the Minister has raised.

Kate Hoey: I did not quite grasp what the hon. Lady was asking. Will she repeat it?

Miss McIntosh: If I am fortunate enough to catch your eye, Mr. Deputy Speaker, I hope to elaborate on this matter at greater length, but the Bill clearly talks about what should happen if the accused was insane at the time. Under clause 1(2)(a), the CCRC can refer a case
because of an argument, or evidence, not raised in the proceedings which led to the verdict".
Has the Minister had time to consider what level of evidence and proof the commission and the Court of Appeal would consider sufficient to review the case—either this case or any other?

Kate Hoey: rose—

Mr. Deputy Speaker: Order, again, we are going wide of the subject and extending the case being put before us on Third Reading. [Interruption.] Perhaps the Minister did talk about such matters, but sometimes the Deputy Speaker gives a Minister some leeway, in order to assist the House. Can we now return to the Third Reading debate?

Kate Hoey: Thank you, Mr. Deputy Speaker. What the hon. Lady asked about is a matter for the CCRC. I suggest that she visits the commission, which will give her a full explanation of how it goes about its difficult job.
In the previous Session of Parliament, Lord Ackner introduced a Bill intended to amend the Criminal Appeal Act 1995, to enable the Criminal Cases Review Commission to refer a verdict of guilty but insane to the Court of Appeal, and to give the court powers to hear and dispose of an appeal on such a reference. That Bill was unable to complete its parliamentary passage, but on its Second Reading on 29 July last year, the Government made it clear that we fully supported its intention.
In this Session, Lord Ackner has introduced the present Bill, which has the same aim as the earlier one. It had its Second Reading in another place on 23 March, and was welcomed on both sides of the Chamber. No amendments were tabled, and no peer wished to speak during the Committee stage, so the order of commitment was discharged on 13 April. The Bill had its Third Reading, without debate, on 22 April. Its Second Reading and Committee stage in the House of Commons went through on the nod on 14 May. That is why, as I have already said, some hon. Members wanted to say something on Third Reading.
The Government accept that there is a gap in the law, which the Bill would fill. It is important for the maintenance of confidence in our system of justice—and important, above all, to individuals who believe that an injustice has been done to them—that there should be a means by which verdicts of the courts can be reviewed.
At present, someone against whom the verdict of guilty but insane has been returned has no avenue of appeal. That is the problem for Mr. Iain Hay Gordon. Although that verdict has been replaced, by today's standards the lack of an appeal right is an injustice—no less so for being a long-standing one. It seems particularly unjust when we remember that there is a right of appeal against the finding or verdict of not guilty by reason of insanity.
It is always difficult to give exact numbers, but it seems that there is only one other such case besides that of Mr. Iain Hay Gordon, and there are not likely to be more. Moreover, there is no definite evidence that if the Bill is read for the Third time, the person concerned will use the change in the law to appeal. We are certainly not opening a floodgate.
I understand that if the Bill becomes law, the Criminal Cases Review Commission will carefully consider where Mr. Hay Gordon's case fits into the range of cases with which it is dealing. It may decide to give that case priority, or it may not; I am sure that its staff will read carefully what has been said in the House.

Mr. Swayne: Does the hon. Lady accept that the number of cases to which the Bill may give rise is immaterial? If justice requires that a remedy be provided, even for only one case, is that not sufficient to merit the change in the law?

Kate Hoey: The hon. Gentleman is absolutely right. That would be my view, and, I think, that of all hon. Members. If the law needs to be changed to prevent one case of injustice, that is worthy of a change in the law. The hon. Gentleman may have missed the fact that earlier this morning there were some discussions about the CCRC's resources. I shall not talk about that now, Mr. Deputy Speaker, apart from saying that we increased those resources by 15 per cent. this year, and there are now more workers in the commission. However, this case will not make a huge difference to the CCRC's work load or the resources that it will need.
I pay tribute to the work of my hon. Friend the Member for Sunderland, South in the Home Affairs Committee, which recommended in its March report on the work of the Criminal Cases Review Commission that a fair passage should be given to this uncontroversial measure. The Government have sought to facilitate that, as have hon. Members on both sides of the House. I have had some correspondence with the right hon. Member for Penrith and The Border, who has been helpful throughout. My officials kept closely in touch with Lord Ackner about the present Bill, and the Government are satisfied that it is properly drafted to achieve its objective and correct the long-standing anomaly.
I commend the Bill to the House as a useful and uncontroversial measure that has the Government's full support.

Mr. David Lidington: When the Bill was debated in another place, my noble friend Viscount Bridgeman said that the Opposition would welcome and support it, and I am pleased to repeat that welcome and that support for the Bill today. As my hon. Friend the

Member for New Forest, West (Mr. Swayne) and my hon. and learned Friend the Member for Harborough (Mr. Garnier) said earlier, even if the Bill were designed simply to provide justice for one citizen of our country, that would be justification enough for it.
However, the case of Mr. Hay Gordon has done more than reveal a potential injustice to one man; it has drawn attention to a gap in the law, and to the existence of a category of people who, through legislative oversight, are denied the right of appeal that we would consider just and necessary for any citizen convicted of a criminal offence.
As the Minister said, the difficulties can be traced back to the interpretation placed on the Trial of Lunatics Act 1883 by the House of Lords, which in 1914 ruled that a person found guilty but insane was deemed by the courts to have been acquitted, because the person lacked the guilty mind required for him to be convicted of an offence.
As the verdict of guilty but insane was equivalent to acquittal, it followed that there could be no right of appeal, as in law there was no guilt. That gave rise to the crazy situation in which a man could have been labelled both guilty and insane by a court of law, but have no right of appeal, whatever new evidence or legal challenge might in other circumstances have been available to him.
In the 1960s, as the Minister said, Parliament decided to abolish the verdict of guilty but insane and to substitute the verdict of not guilty by reason of insanity. At the same time, it introduced a right of appeal against such a verdict.

Mr. Leigh: My hon. Friend described the situation as crazy, but perhaps it is not so crazy. Did not the Court of Appeal determination mean that the original verdict in effect found the accused to be not guilty, as he could not possibly have had the mens rea—the guilty mind—to commit the offence? Therefore, does not my hon. Friend agree that the jury and judge involved did not come to a determination about whether the person had committed an offence? No one has addressed that point adequately so far.

Mr. Lidington: It is not for me to inquire today into the state of mind of the House of Lords in 1914. However, it is plainly wrong and unjust in terms of common sense and natural justice for any British citizen in the position of Mr. Hay Gordon—that is, suffering the stigmas of guilt and insanity attached by the public verdict of a court—to be denied any form of redress or appeal. Dickens described the law as "a ass—a idiot", and this provision needs to be amended.
The Criminal Appeal Act 1995, which set up the Criminal Cases Review Commission, provided that any reference by the commission to the Court of Appeal should be treated as an appeal against a verdict. Because the 1914 House of Lords decision meant that there was no right of appeal against a verdict of guilty but insane, it followed that there could be no reference of such cases by the commission to the Court of Appeal.
That principle was felt to be sufficiently uncertain that Mr. Hay Gordon tested it in the courts. Legislation was discovered to be the only available resort when the Court of Appeal in Northern Ireland held, in its judgment of 30 June 1998, that the 1995 Act did not allow the commission to make any reference to the Court of Appeal in such circumstances. I am satisfied that that finding


demonstrated that there is a gap in the law and that justice is being denied. For those reasons the Opposition are happy to support the Bill.

Mr. Peter Brooke: I shall be extremely brief. I immediately declare an interest, in that I have a long-standing friendship with Sir Frederick Crawford, the chairman of the Criminal Cases Review Commission, whom I have known for almost as long as Mr. Iain Hay Gordon has been seeking to have his case re-examined. I thought that the hon. Member for Sunderland, South (Mr. Mullin) paid Sir Frederick a very handsome compliment, given the earlier controversy that surrounded him.
The second interest that I declare is that my father was Home Secretary at the time of the Criminal Procedure (Insanity) Act 1964, which is where the possible drafting problem can be found.
As is recognised throughout the House, the Bill is driven by the case of Mr. Iain Hay Gordon, who has been a constituent of the hon. Member for Glasgow, Maryhill (Mrs. Fyfe) for as long as she has represented that constituency. I wish to add a brief but poignant footnote to the case.
My advancing years mean that my memory is becoming increasingly unreliable, but I remain convinced that I, too, had a constituent called Mr. Iain Hay Gordon. I am seeking to verify that, and it is of course possible that the man whom I recall bore the same name as the constituent of the hon. Member for Maryhill by total chance. I shall not go into the details of my former constituent's case, although I well recall it, and he is certainly no longer my constituent. However, as I know who his landlord was, I shall pursue the matter to resolve my curiosity, and the hon. Lady has kindly told me that she will send me a copy of her constituent's correspondence. The man whom I remember had pellucidly clear handwriting, which I would recognise instantly.
I say that my footnote is poignant because the constituent about whom I have spoken never raised with me the issue underlying the Bill. If he had, it would have immediately struck a chord with me, because of my father's role in 1964. If by any chance this is not a coincidence of name, it is a sad irony that he did not raise the matter with me.
However, whether or not I was ever the Member of Parliament representing the Iain Hay Gordon who is now the constituent of the hon. Member for Maryhill, I totally support the principle of the Bill. I hope that Mr. Iain Hay Gordon's disability can now be put right.

Miss Anne McIntosh: I am delighted to lend my support to the Bill. Although I was charmed by the Minister's invitation to visit the Criminal Cases Review Commission, the hon. Lady ought to know that, at the end of April, there were 1,176 cases awaiting review, and 444 under active review, so I doubt whether the commission would welcome fact-finding visits from Back Benchers. Our aim today is to fill a loophole in the law and to expedite the correction of miscarriages of justice.
It is ironic that we should be considering a case involving a Scot, now living in Scotland, who it is alleged committed an offence in Northern Ireland for which he was subsequently convicted. The provision that the Bill will correct covers Northern Ireland but not, happily, Scotland. Perhaps the moral is that we would not be here today had the offence been committed in Scotland.
A couple of specific points are neither covered by the Bill nor clarified in the explanatory notes. The verdict commonly referred to as guilty but insane under section 3 of the Trial of Lunatics Act 1883 invites a question that I have tried to pursue with the Minister today and which I shall take up again in writing.
The question of whether the accused was permanently insane or only temporarily so has always been left open, as has the bearing on the case of the accused's state of insanity when the offence was committed. I hope that the Minister will clarify in writing whether clause 1(2)(a) refers to evidence that was not raised in proceedings but which led to the verdict. Such clarification would be welcome, and would mean that the courts would not have to spend time considering the matter.
The Bill enables the Criminal Cases Review Commission to refer to the Court of Appeal a verdict of guilty but insane reached under the 1883 Act. I query whether the Bill should have set out the degree of proof required by the Court of Appeal in cases referred to it by the commission.
The hon. Member for Glasgow, Maryhill (Mrs. Fyfe) has expressed her concerns about the case of Mr. Iain Hay Gordon. I wish to enter a note of caution. Even though the Bill will receive its Third Reading today, there will still be no quick fix for people in Mr. Hay Gordon's position. The commission faces a huge backlog of cases, as I have described. The problem that we face, even in giving the Bill a Third Reading, is that, in such circumstances, Mr. Gordon and other such constituents will not have their names cleared as rapidly as they would like.
A press release of the Criminal Cases Review Commission of 15 December 1998 informed the Home Affairs Committee that there was at that time a two-year wait for the review of applicants' cases. It is most poignant that Iain Hay Gordon's case will not be expedited. I therefore make a plea to the Minister in that regard.
I record my regret that Mr. Gordon will still have two important hurdles to overcome. First, the case will have to be reviewed by the Criminal Cases Review Commission. Perhaps a subsequent private Member's Bill could facilitate the expedition of cases awaiting review. Secondly, if such a review is successful, Mr. Gordon's case will be referred to the Court of Appeal. None the less, I lend the Bill my support on Third Reading.

Mr. Graham Brady: I support the Bill, but will raise one or two concerns about it. I am pleased to follow my hon. Friend the Member for Vale of York (Miss McIntosh). I record the thanks that the House should give not only to the hon. Member for Sunderland, South (Mr. Mullin), who is the promoter of the Bill, but to my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth), who rightly reminded the House of the inadequacy of our procedures for considering such business.
That point was highlighted by my intervention on the Minister. I noted that the hon. Lady was passed a piece of information, and hoped to receive a substantive response to my point, but I waited in vain. She kindly offered to write to me on the matter, but to receive a letter of assurance or clarification after we have completed our consideration of the Bill would be rather inadequate. I shall therefore return to one or two points that concern me.
I have listened to the points made by my right hon. and hon. Friends, particularly those who have some legal training. It occurs to me that this is precisely the kind of debate to which the newly elected Member for Eddisbury might turn his legally trained mind in the very near future—he cannot quite yet contribute to the debate.
I note in passing that in Eddisbury just two days ago, I saw the wonderful spectacle of three Labour Members on one poor gentleman's doorstep, which reminded me of old jokes about psychotherapists changing light bulbs. I do not know how many Labour Members it takes to lose a by-election.
I am entirely happy with the purpose and thrust of the Bill because it will be permissive legislation in the best possible sense. It will allow the process of justice to move forward, which must surely be a good thing. However, because we have not had an opportunity properly to debate the Bill's effects, I have some remaining concerns. The Bill may allow the Criminal Cases Review Commission and the Court of Appeal to improve matters by removing the stigma of insanity, but surely that same stigma is attached to the verdict of not guilty by reason of insanity.
That brings me to the point that I raised with the Minister. There are two separate elements to both verdicts and therefore two findings. One is that the person is not guilty and the other is a matter of the reason why, which implies insanity or incapacity on the part of the individual concerned. That may be an issue in the later type of verdict—not guilty by reason of insanity—following the Criminal Procedure (Insanity) Act 1964, but it is vital to those who have been found guilty but insane.
If the cases of such people—there may be one or more than one, we do not know—are referred to the Court of Appeal by the Criminal Cases Review Commission, what remains if the verdict of guilty but insane is struck down? Is it to be presumed that the person is simply not guilty, or would the court merely be saying that the verdict of guilty but insane was wrong? Despite the court taking the view that the person was not insane, the possibility that the person was guilty remains. Conversely, the court could remove the finding that a person was guilty but leave the question of insanity. I look forward to the Minister's reply.

Kate Hoey: May I clarify the matter? As the explanatory notes state, there is no difference between the verdicts. If a case goes to the Court of Appeal in either of the circumstances to which the hon. Gentleman is referring, it is up to the Court of Appeal to decide whether the person is guilty or not guilty.

Mr. Brady: I am grateful to the Minister, but my concern remains. The Court of Appeal can decide whether

the person is guilty or not guilty, but can it decide whether the person is insane or not insane? There is no provision or clarity in the Bill about what is left following the Court of Appeal's addressing of the case. It may throw out one verdict, but does that clear the name of the individual? It may be entirely appropriate in some cases totally to exonerate an individual, but in others it may be appropriate to allow one part of the verdict to remain.
Such a sticking point will not stand in our way in making the Bill law, but to conclude on the thought with which I began, it points to the woeful inadequacy of the ability of the House to scrutinise such matters. It is not acceptable that such an important detail—it may be just a detail—in the criminal law should be dealt with in a very brief Friday morning debate in which we have had very little opportunity properly to scrutinise the implications of what is proposed.

Mr. David Maclean: I shall take two or three minutes, if I may, to make some remarks about the Bill, as I have been kindly mentioned by several speakers, including the Minister. I had made notes for a much longer speech, but most of the comments that can be made on the law have been made by other Conservative Members and I merely wish to make a couple of quick observations.
We had no debate on Second Reading, partly because some of my hon. Friends were persuaded that in order to deal with this urgent problem—an important issue of the human rights of another human being—we should allow the Bill to pass into Committee, after which we could discuss it here on Third Reading. That goes against all my principles of not allowing a measure to receive a Second Reading on the nod, without proper scrutiny. I apologise to my hon. Friends who rightly complained this morning that they could not participate in a Second Reading debate and that they would have liked to discuss some points in Committee, but if we had insisted on a Second Reading debate the Bill would have been killed, and would not now be before the House.
I am grateful to the Minister and to Lord Williams of Mostyn—an elegant and sincere man. It is wonderful to think that there can be life peers with all the status, breeding and tact of the hereditary peers. Lord Williams of Mostyn was kind enough to invite me and some of my right hon. Friends to the Home Office to explain the purposes of the Bill. I have concluded that, although I may have some worries, it was best to let the Bill proceed so that we might hold this Third Reading debate.
I appreciate that you must uphold the rules of the House, Mr. Deputy Speaker, but some of my hon. Friends who went slightly wide of the tight restrictions on speaking on the Iain Hay Gordon Bill did so in order to cover issues that they could not have covered in debates on other matters.
I welcome the measure, even though there are concerns that it is retrospective, going back, as it does, more than 40 years. There are precedents for retrospective legislation, but the Bill also deals with a single case. There are a few examples of legislation dealing with hard cases, but often they cover a category wider than one person. Those points were discussed in more detail by my colleagues.
Is it appropriate for the House of Commons to pass this legislation in a minute's time, when it will not be able to go to another place for further consideration, in order to


deal with one person who is no longer in prison, whose case was heard 40 years ago? I have concluded that in this case it is appropriate; the interests of that human being and the interests of justice suggest that. I therefore have pleasure in supporting the Bill.

12 noon

Mr. Mullin: With the leave of the House, Mr. Deputy Speaker.
There is no reason for me to dwell on the subject. We have had quite a good debate. The point at issue is narrow and I have not detected outright opposition to the Bill from anyone who has spoken. I thought that the right hon. Member for Penrith and The Border (Mr. Maclean) summarised the position perfectly well.
I shall not respond to all the arguments made by hon. Members, as I suspect that some were motivated more by an interest in mink farming than by an interest in the Criminal Cases Review Commission or the Iain Hay Gordon case. [Interruption.] I do not want to wind up Conservative Members, so I shall not make anything of that point.
The right hon. Member for Penrith and The Border said that the Bill was about a single case. That is not quite true. It is about a category of cases of which there are only, as far as I know, two known examples, of which by far the most prominent is that of Mr. Iain Hay Gordon.
The Bill has hardly any implications for resources. There is no need to become bogged down in the Iain Hay Gordon case, because the commission, not Parliament, will decide whether to refer the case back, and it is for the commission to decide what priority to give it, although in my view the circumstances are so exceptional that it should be dealt with as swiftly as possible. The commission has probably also reached that view.
Even assuming that the commission refers the case back to the Court of Appeal, Mr. Hay Gordon has another fairly high hurdle to surmount, which is to persuade the Northern Ireland Court of Appeal to quash the conviction. I shall watch carefully how the Northern Ireland Court of Appeal deals with the case. That court has a reputation for being—I put it generously—rather conservative in this area. It is perhaps under old management—unlike the British Court of Appeal, which, over the years, has suffered a few serious shocks which have caused it to look with a slightly more open mind at some of the cases coming before it. I hope that that process is now finding its way over to Northern Ireland and that Mr. Iain Hay Gordon will benefit.
As I detect no real opposition to the Bill, it remains for me to commend it to the House.

Question put and agreed to.

Bill accordingly read the Third time, and passed, without amendment.

Mental Health (Amendment) (Scotland) Bill

Not amended in the Standing Committee, considered.

New Clause 1

REPORT TO MENTAL WELFARE COMMISSION

'(1) Where the managers of a hospital exercise their powers under subsection (3A) of section 94 of the Mental Health (Scotland) Act 1984, they shall submit regular reports in writing to the Mental Welfare Commission about the discharge of the powers under that section.
(2) A report under subsection (1) shall be submitted no later than 18 months after the discharge from hospital of the patient concerned, and thereafter on an annual basis, until such time as either—

(a) the patient is considered by the medical officer in charge of his case to be capable of adequately managing and administering his property and affairs; or
(b) a curator bonis is appointed in respect of that person.
(3) Any report submitted under subsection (1) above shall be made available on application to any person who, in the judgement of the Mental Welfare Commission, has a legitimate interest in its contents.'.—[Mr. Forth.]

Brought up, and read the First time.

Mr. Eric Forth: I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker (Mr. Michael J. Martin): With this, it will be convenient to discuss the following: New clause 4—Right of appeal—
'( ) Any person shall have the right to appeal to the Mental Welfare Commission against—

(a) the holding by the managers of a hospital of money and valuables on behalf of a person under section 93(3A) of the Mental Health (Amendment) Act 1984; or
(b) the expenditure of money or disposal of valuables in pursuance of section 93(3) of that Act.
(2) Where the Commission upholds the grounds of such an appeal, it shall determine what recompense shall be payable by the hospital to the patient concerned.'.
Amendment No. 2, in clause 1, page 1, line 8, after `may', insert
', for a period not exceeding five years following the discharge of the patient,'.
Amendment No. 1, in page 1, line 16, at end insert—
'( ) The managers of a hospital may exercise their powers under this section until such time as either—

(a) the patient is considered by the medical officer in charge of his case to be capable of adequately managing and administering his property and affairs; or
(b) a curator bonis is appointed in respect of that person.
( ) Any person may at any time request that the patient's ability to manage and administer his property and affairs be reviewed by the medical officer in charge of the case.'.
Amendment No. 5, in page 1, line 16, at end insert—
'(3C) For the purposes of subsections (3A) and (3B) of this section—

(a) "money" shall include bank notes and coins and sums deposited in a bank or building society account;


(b) "other financial assets and investments" shall include stocks, shares, Government bonds, personal equity plans, tax exempt special savings Accounts, individual savings accounts, unit trusts, corporate bonds, pension funds and life assurance;
(c). "money", "other financial assets and investments" and "valuables" shall include sums and items inherited by the patient when resident in hospital or subsequent to discharge from hospital.'.

Mr. Forth: We have now arrived at a crucial stage in the consideration of the Bill, which has indeed been through its process. It received a Second Reading, and the Committee, on which I had the honour of serving, considered the Bill briefly. In Committee, one or two questions arose, to which I believe that the House will want to return, so as to satisfy itself. I hope that it will be accepted that the new clauses and amendments are a genuine attempt to improve the Bill, to ensure that it takes a balanced approach to the problem that everyone accepts exists.
By good fortune—or, more probably, good organization—I received in my mail this morning, from the Law Society of Scotland no less, a letter referring to the Bill. It says that the Law Society of Scotland supports the Bill. It then very eloquently describes the purposes of the Bill.
The letter states:
This Bill seeks to amend Section 94 of the Mental Health (Scotland) Act 1984, which enables managers of a hospital to receive and hold money and valuables on behalf of incapable patients who are detained in hospital or are receiving treatment there. Section 94 does not permit the managers to release the funds to the patient or anyone else when the patient ceases to receive treatment in the hospital and returns to live in the community. Where there is no curator or other person legally authorised to receive money on behalf of the patient, the funds become trapped and patients are prevented from getting access to their own resources.
The letter continues:
The Bill will attempt to resolve this specific problem by allowing the managers of hospitals to continue to hold monies and valuables which they are holding at the time of the patient's discharge, and empower them to spend money or dispose of the valuables for the benefit of the patient in terms of Section 94, even though the patient is no longer detained in hospital…The Society supports the Bill and recognises that it will solve a problem which is affecting a substantial number of former hospital residents in Scotland. The Bill is of great importance to vulnerable persons in Scotland.
The society urges me to give it my support.
I read out the letter because I think that it states elegantly the purpose behind the Bill and the background to it, and because it lends the distinguished support of the Law Society of Scotland to the purposes of the Bill. So far, so good. The objectives behind the Bill are clear and at one level we can have little or no argument with them. However, I believe that the Bill raises a number of important questions and issues, with which the new clauses and amendments are designed to deal.
The hon. Member for Paisley, North (Mrs. Adams) is managing the Bill on behalf of the hon. Member for Midlothian (Mr. Clarke). We all wish the hon. Gentleman a speedy recovery. We hope to see him back in the House very soon. We hope also that the way in which we deal with the Bill will give him even more reason to feel better and to return. I hope that the hon. Lady and the Minister have given serious consideration to the new clauses and amendments. They are designed to improve the Bill in some important ways.
First, I seek to improve the Bill in the area of accountability. As soon as we start to talk about a vulnerable section of society—people who are by definition incapable in one way or another—and about someone else having responsibility and control over the assets of the incapable person, we are raising important issues of accountability and of possible appeal.
I would have thought that the purpose behind new clause 1 is almost self-evident. It states:
Where the managers of a hospital exercise their powers…they shall submit regular reports in writing to the Mental Welfare Commission about the discharge of the powers under that section.
Surely that is unarguable and almost self-evident. My right hon. Friend the Member for Penrith and The Border (Mr. Maclean) and I want to ensure and guarantee as far as we can that there can be no possibility of mishap, malfeasance or whatever in the handling of moneys of a vulnerable person by somebody else.
I do not suggest that that is likely or probable. The very people to whom existing legislation and the Bill would give responsibility are those who are for the most part dedicated to their task of dealing with vulnerable people. That is not to say that we should ignore our responsibility to provide as many safeguards as possible for the discharge of that important responsibility.

Mr. Desmond Swayne: At least part of the value of the new clause is that it will give a measure of reassurance to relatives who suspect that things may not have been done as well as they might have been.

Mr. Forth: I am grateful to my hon. Friend, who raises an important matter that should not be treated lightly. Although I shall concentrate on the relationship between the patient and the hospital, my hon. Friend is right to point out that those close to the patient are often the most worried. We have a responsibility to them as well. They have seen their nearest and dearest in unfortunate circumstances, and they—the relatives and friends—want the maximum reassurance that all is as it should be.
I therefore suggest in new clause 1 that the submission of regular reports in writing about the discharge of that responsibility is the least that we can expect. It is a minimum provision on which we can build, and on which I shall build as I argue for my various new clauses and amendments.
New clause 1 goes on to state, importantly, that any report
shall be submitted no later than 18 months after the discharge from hospital of the patient concerned, and thereafter on an annual basis".
In other words, we want to make sure that reports are issued not too frequently, but sufficiently frequently to give reassurance and to allow a proper basis of accountability in the discharge of an important responsibility, until the patient is considered able to manage his or her affairs, or until a curator bonis is appointed, and the responsibility passes on from the person specified under the Mental Health (Scotland) Act 1984, which we seek to amend, and moves out of the purview of this legislation.
New clause 1 is a minimum requirement, so I shall not dwell on it. New clause 4 raises an issue of more fundamental importance, which I hope that the


hon. Member for Paisley, North and the Minister will want to deal with appropriately—the right of any person to appeal to the Mental Welfare Commission against
the holding by the managers of a hospital of money and valuables
on behalf of the incapable person, or
the expenditure of money or disposal of valuables
in pursuance of section 93(3) of the Mental Health (Amendment) Act 1984.
That is a basic mechanism which it is essential to build in to give proper reassurance to the most vulnerable that they have a right to appeal if they or, as my hon. Friend the Member for New Forest, West (Mr. Swayne) suggested, their relatives or friends felt that anything being done was in any way wrong.
I doubt whether there would ever be outright theft or misuse of the money or valuables, but let us suppose that it was considered that moneys were being unwisely invested and that a sufficient rate of return was not being obtained. I shall return to that later, in the context of later amendments.
The right to appeal if someone feels that his assets are not being properly managed to his maximum benefit is unarguable. We are keenly sensitive to the needs of vulnerable groups and put in place all sorts of mechanisms to protect them. I am in danger now of arguing against myself, but I sometimes feel that we do too much in that direction. That is my view with regard to people who are able-bodied and in full possession of their faculties. They should largely be able to fend for themselves, but in the present case, we are dealing with a vulnerable group.
Such people may not have friends and relatives to help them. They may be on their own, as I suspect all too many of them are, and for that reason they are doubly or trebly vulnerable.
12.15 pm
In that context, the right to appeal is surely important.
Subsection (2) says that where the Mental Welfare Commission upholds the grounds of such an appeal, it shall
determine what recompense shall be payable by the hospital to the patient concerned.
That is an important issue. We are saying not only that there should be accountability for the discharge of that important responsibility—and that there should be a right to appeal—but that where it is established that some damage has been done to the interests of the incapable person, there must be a provision for recompense.
All too often, a vulnerable person entrusts—or has had entrusted to someone else—his money or assets, and when something goes wrong, is left wondering why he has no ability to recover what has been lost. There should be the ability to provide recompense on such an occasion, although I am sure that such cases will be the exception rather than the rule.
An interesting presumption underlies the Bill—that someone in management in a hospital, whose main skill is in dealing with people's mental and physical welfare, is equally capable of dealing with financial affairs. I am not sure that that is self-evidently the case, and we may wish to air that matter again on Third Reading.
I am prepared to accept that a hospital manager would not in every case personally discharge responsibility, and that he may delegate it to someone else. However,

that raises other implications. If the institution is a relatively small one and does not have a large bureaucracy or a large number of people available, the manager might have to take the responsibility on personally. I do not know. However, some important questions are starting to arise on the detailed application of a simple and straightforward principle.
The Law Society of Scotland—bless it—was kind enough to write to me to say that the Bill was splendid, much overdue and desperately wanted in Scotland. I have no doubts about that. However, I wonder whether the Law Society looked in detail at the Bill. I received the letter only this morning, just before I came into the Chamber, and I have not had the chance to discuss with the Law Society whether it feels that the new clauses and amendments add to the Bill. That might have been a valuable contribution to the debate. Perhaps there is some way in which the Law Society could let us know before the end of this short debate, and before we speed the Bill on its way—amended by my new clauses and amendments, I trust.
Amendment No. 2 tries to impose a reasonable time limit on the processes of the Bill. I concede immediately that, in this context, there are pluses and minuses in imposing arbitrary time limits. My purpose is to try to provide a framework within which the mechanism can work so that it can be subject to periodic review. I propose a period of five years. Some might feel that to be too long, but there should be a measure to provide a time frame for the operation of the Bill.

Mr. David Maclean: Is my right hon. Friend aware that the argument for a time frame is supported by the Scottish Association for Mental Health? Admittedly, it favours a much shorter period than that which we have specified, but it considers the absence of a time limit to be a small but significant gap.

Mr. Forth: My right hon. Friend's point shows that, even though the Bill was debated in the Chamber on Second Reading and in Committee, legitimately interested parties such as the one to which he refers and the Law Society of Scotland are coming forward at this stage in proceedings to make such points. Our amendments are an attempt to respond to some of them. No doubt my right hon. Friend will make his own justification of them, should he catch your eye, Mr. Deputy Speaker.
Suffice to say that the point made by my right hon. Friend, for which I am grateful, shows that people outside the House who watch the progress of Bills take the opportunity at each stage—particularly in Committee and on Report—to give Members of the House the benefit of their experience so that amendments may be drawn up. That is the essence of the legislative process and that example has certainly shown the value of it. I am grateful to him for reinforcing the argument for our modest amendment, and I hope that we will not fall out over the time scale. All I want to establish is that there is good reason for specifying a time limit rather than not having one.

Mr. Peter Luff: My right hon. Friend says that the legislative process provides the opportunity for outside bodies to make representations. Has he received any about the time scale he suggests?


Five years seems to be a rather arbitrary figure. I am persuaded by his argument in principle, but where has that magic figure come from?

Mr. Forth: As ever, that is a most reasonable question and one with which we wrestle frequently in these contexts. Any time scale is, of necessity, arbitrary; it comes down to a matter of judgment. Our judgment is that five years is about right.
I have not received the representation that my right hon. Friend the Member for Penrith and The Border (Mr. Maclean) has received, but I have received a letter from the Law Society of Scotland, which he has not received. I do not know whether my hon. Friend the Member for Mid-Worcestershire (Mr. Luff) has received such a letter.

Mr. Luff: indicated dissent.

Mr. Forth: I make no complaint about it, but a series of representations on different points have come in to us, which has enabled us to seek to improve the Bill. That is as it should be. To finish my inadequate answer to his point, I confess that five years is an arbitrary figure. Although our judgment is that that figure is appropriate to what we were seeking to achieve, I would not say that it is the final answer. However, it provides a time context.

Mr. Maclean: I merely wish to answer the point that my right hon. Friend has raised. I have not received such a letter—not because one has not been sent, but because I have been tardy in collecting my mail this morning—and I did not receive a letter from the Scottish Association for Mental Health. I suggest that, for the millennium, he connect his computer to the internet and then surf cyberspace; he will find all the representations there, as I did.

Mr. Forth: My right hon. Friend well knows that vile expressions such as "cyberspace" are alien to me. I have never yet surfed the internet and I hope to survive for some considerable time without surfing it. I know that, for him, the internet is the source of a considerable amount of information, and I wish him well in that, but I prefer my mind to remain relatively uncluttered in these matters. I also prefer to receive my information from the written word on the page. I am old-fashioned that way and I find it reassuring to hold a document in my hand, as I am now—

Mr. Deputy Speaker: Order. None of those matters have anything to do with the new clause.

Mr. Forth: Indeed, Mr. Deputy Speaker. I am making the mistake of being led astray by my right hon. Friend the Member for Penrith and The Border.

Mr. Patrick McLoughlin: rose—

Mr. Forth: I hope that my hon. Friend is not about to do the same.

Mr. McLoughlin: Can my right hon. Friend assist me? The Bill applies only to Scotland. This is the United

Kingdom Parliament and, although these matters may now be for consideration by the Scottish Parliament, can he explain the position in respect of England? We need to know that all citizens of the United Kingdom are being treated equally.

Mr. Deputy Speaker: Order. We will worry about the amendment that is being discussed.

Mr. Forth: Yes, Mr. Deputy Speaker—and it must be said, in fairness, that my hon. Friend will have an opportunity, within the rules of order, to explore that point later. Indeed, I hope to do so myself, but I will not be misled at this stage.

Mr. Swayne: rose—

Mr. Forth: I hope that my hon. Friend is not going to try to mislead me.

Mr. Swayne: No; I want to refer precisely to the amendment, and the arbitrary choice of five years. What does my right hon. Friend propose should happen at the end of that period? He should remember that the Bill is designed to remedy the weakness whereby, at present, a person must engage in an expensive process in order to obtain control of the funds. By introducing a five-year limit, my right hon. Friend may undermine the Bill's purpose.

Mr. Forth: I hope not. I am not going to disagree violently with my hon. Friend; I merely say that our aim was to introduce a long stop, as it were, forcing the matter to be reviewed after five years. That is why we chose a longer rather than a shorter period. I accept that any measure of this kind is fraught with certain difficulties: I do not dissent from that at all. The amendment was intended to provide a beneficial long stop.

Mr. Swayne: I have another question, which refers specifically to the amendment, but also refers generally to it and the new clauses and amendments grouped with it. My understanding is that the Bill is very much a temporary measure pending a much wider review of the law in respect of these matters.

Mr. Deputy Speaker: Order. The hon. Gentleman keeps talking about the Bill. We are discussing a specific amendment—or rather, several specific amendments. The hon. Gentleman cannot talk about the Bill at this stage.

Mr. Forth: Indeed, Mr. Deputy Speaker. It may well be that on Third Reading we shall be allowed just a little latitude to discuss the point raised by my hon. Friend.

Mr. Swayne: May I say something, on the question of the amendments?

Mr. Forth: Only on the amendments, please.

Mr. Swayne: Is not the force of the new clauses and amendments reduced by the fact that the Bill is a temporary measure? Is there any reason for introducing arbitrary limits such as the five-year limit, given the time limit that applies to the Bill as a whole?

Mr. Forth: I do not say this very often, but I will say it to my hon. Friend now, in a spirit of friendship. I have


been in the House for 16 years, and had the privilege of serving in government for nearly nine years. I know that very few things in this place are temporary. We are all aware that procedures relating to a measure that may well appear now to be subject to review are likely to continue for rather a long time. I do not want to rest my case on the assumption that the Bill is only a temporary measure, and that everything will be sorted out soon. As you know even better than I, Mr. Deputy Speaker, that is a pretty risky approach, and I do not accept what my hon. Friend has said in this instance.
I want to press on. I want to give others a chance to explore these matters, and I do not want to jeopardise the passage of the Bill. Let me say something about amendments Nos. 1 and 5. What we are trying to do is consistent with our aim in, particularly, the new clauses. I shall skip the preamble, but amendment No. 1 provides, in essence, that
any person may at any time request that the patient's ability to manage and administer his property and affairs be reviewed by the medical officer in charge of the case.
We want to build in the opportunity for a review to take place, in the interests of the patient, and to allow those who may also have the patient's interests at heart—in addition to hospital managers and others—to have an input. This is a protective mechanism, and I think that it is at one with the purposes of the new clauses.
Let me now deal with an amendment that applies to a rather different issue, although it is grouped with the other amendments and new clauses. My amendment—I apologise; it is not my amendment, but that of my right hon. Friend the Member for Penrith and The Border (Mr. Maclean), and I want to express my support for it. What I suspect my right hon. Friend had in mind—certainly, this is how I interpret the amendment—is this: we want to make absolutely certain that the terminology of the Bill covers all reasonable circumstances and eventualities in the important context of money, assets and so on.
12.30 pm
That is why the amendment seeks to go in a little detail into the sort of assets that would be covered. It talks not only about money in the obvious sense. We believe that it is important to bring other assets within the definition in the Bill to allow their management to the advantage of the patient. The amendment covers
other financial assets and investments
and, importantly, says that those include stocks, shares, Government bonds, personal equity plans and so on. We are not attempting to be exhaustive—not to say exhausting—but we want to try to ensure that, in the fulfilment of the purpose of the Bill, we encompass all possible assets, particularly those that are interest bearing, so that there is no danger that the proper interests of patients are neglected, or minimised by an over-restrictive Bill.
That is the thrust of what my right hon. Friend the Member for Penrith and The Border is getting at, but he will explain his position, I hope, in a moment. I wanted simply to lend support to what I understood to be the purpose of the Bill, and to ensure that the patient's interests are fully looked after.
Hon. Members can see the thrust of what we are doing. The new clauses and amendments are designed to enhance the Bill, to protect the incapable person as far as possible,

and to ensure as far as we reasonably can—without, I hope, being too bureaucratic—that, when the patient, or friends or relatives of the patient think that there is a risk of the patient's interest not being fully looked after, mechanisms are provided in the Bill to guard against that.
That is the thrust of the new clauses and amendments. I hope that they will be looked on kindly by the hon. Member for Paisley, North, on behalf of the promoter of the Bill, and by the Minister. However, if, for some reason that I could not possibly understand, they were minded to ask the House not to accept the amendments, at the very least I would want full assurances that the concerns that lie behind the new clauses and amendments could be fully covered within the existing terms of the Bill, without any further amendment. That is the very least that we would expect.
I am sure that the Law Society of Scotland is hovering somewhere, listening to the proceedings. I cannot speak for it, but I am sure that it would have the same worries. If the hon. Member for Paisley, North and the Minister are not going to satisfy me, they of all people will have to answer to the Law Society of Scotland if they do not get it absolutely right.

Mr. Luff: It is in the nature of these Fridays that a Bill that first looks totally uncontroversial and unproblematic acquires a new character as we listen to the arguments that are expounded by hon. Members. I was particularly struck by the group of amendments and new clauses that we are discussing following the comments by my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) in Committee. He said that the Bill
is the model private Member's Bill. It is short, it is non-controversial, it has the Government's blessing and the hon. Gentleman introduced it in good style. I wish it God speed,"—[Official Report, Second Scottish Standing Committee, 19 May 1999; c. 3.]
Any Bill that my right hon. Friend wishes God speed must indeed be a good Bill.
I am delighted to see that the hon. Member for Paisley, North (Mrs. Adams) is here to take the Bill through, in the place of the hon. Member for Midlothian (Mr. Clarke), who, sadly, is unable to do so. I join my right hon. Friend the Member for Bromley and Chislehurst in wishing him a speedy recovery.
I genuinely believe that the amendments and new clauses deserve at least to be answered by the Government, or the hon. Member for Paisley, North, because they raise genuinely important issues. As I understand it, by the end of the year, the safeguards in the amendments and new clauses could apply to some 750 people and to assets totalling about £3 million, so it is not an inconsequential issue for the House to consider.
I am grateful to the Library for its helpful briefing note on the Bill. I realised that the safeguards that are alluded to in the amendments and new clauses were of great importance when I read the extent of the concern in Scotland about the current position. It is not simply a matter of there being no power to move the funds from the hospital when the patient moves on; there are deeper-seated concerns. That is why it is so important to have safeguards.
I have some reservations about one of my right hon. Friend's amendments, which has some vagueness in its drafting and I shall turn to that later. However, the Government and the promoter of the Bill would do well to take the amendments seriously.
According to the Library, all that is required for the hospital to take over the management of a patient's funds is for a responsible medical officer to state that, in his opinion, the patient is incapable of managing and administering his property and affairs by reason of mental disorder. That is quite a simple test and there are probably clear-cut cases, nevertheless safeguards must be appropriate.
I am aware that there have been changes in the monitoring of expenditure by hospitals and that is welcome, but if the Bill is to proceed, as I am sure it will, we need to be confident that the right safeguards are in place.
The Scottish Law Commission's discussion paper on managing the welfare and finances of incapable adults made a number of telling criticisms of the absence of safeguards in the system: only one medical certificate is required; there is no opportunity to challenge a certificate; central management by hospitals may be regarded as remote and impersonal; no individual is appointed with specific responsibility and it is not clear how far the duty to receive money extends. It is right that the House should consider those worrying points when extending the scope of legislation.
I am particularly concerned about section 94 of the Mental Health (Scotland) Act 1984, which states:
managers shall have regard to the sentimental value that any article may have for the patient".
That seems to be a difficult judgment to make, as the provision recognises when it continues,
or would have but for his mental disorder".
It is tremendously difficult to judge what may be of sentimental value to an individual. My wife had the invidious task of emptying my mother's house on her death and she made judgments as to which items in the house were of sentimental value to me. On the whole, she did a remarkable job, but one or two things that I would have liked still went into the skip.

Mr. Forth: Let me give my hon. Friend a surprising example to reinforce his point. It is even possible that company stocks and shares may be of sentimental value. When I inherited a modest share portfolio, I decided to keep one or two shares that had been very good for my mother over a period of time. Therefore, I had a peculiarly sentimental attachment to them. Even something as apparently banal or financial as a share could in some circumstances come under the definition to which my hon. Friend refers.

Mr. Luff: Strangely, I agree with my right hon. Friend. If I were to be placed in the position covered by the Bill, there are two groups of shares that I hold that I would not want to be disposed of on my behalf by a hospital manager or anyone else. They include shares in the Severn Valley Railway, of which I am a vice-president and shares in another company which were bought by my mother on the advice of a travelling salesman. They were a disastrous investment as they collapsed in value and any manager might well consider disposing of them on my behalf, but I would be sorry if they were sold. I shall not name the company as that would be invidious, but my right hon. Friend makes a genuine point. The strangest

items can have sentimental value. They are not limited to paintings, keepsakes, souvenirs and books; even financial instruments can have such an attachment.
I am particularly concerned to know what rights the relatives of a patient have to disagree with any expenditure on behalf of that patient. A number of us will have had difficult constituency cases involving mentally incapacitated adults. Watching families, close relations or, in one case the fiancéof a patient shows that it is a difficult and painful process. It is crucial that when a manager spends money to benefit a patient, the family has some rights to challenge that expenditure.
On 12 March, the Bill had a long Second Reading. A cynic might say that that had something to do with legislation that should have been considered after the Bill—such as the important Bus Fuel Duty (Exemptions) Bill, promoted by my hon. Friend the Member for West Derbyshire (Mr. McLoughlin). Nevertheless, the Second Reading debate was a good one. However, one sentence in the Minister's reply to the debate caught my eye and worried me, which is partly why I believe that the safeguards proposed in this group of amendments are so important. The Minister said:
anyone who deals with a person's funds has an obligation to account for his actions. If he is negligent, that can be remedied under common law."—[Official Report, 12 March 1999; Vol. 327, c. 646.]

Mr. Forth: Oh, no.

Mr. Luff: That is the safeguard that we are being offered by the Minister, but it is a sledgehammer to crack a nut. The approach suggested by my right hon. Friend the Member for Bromley and Chislehurst offers a much better way of dealing with the problems. We are often talking about quite small sums and I am loathe to hand to lawyers the "benefit" of a dispute on issues that are often tragic and personal, involving painful and difficult decisions. We could find less painful dispute-resolution procedures than those offered by the Minister in his reply, which greatly concerned me.
The Minister also gave some assurances on safeguards to the House. Although ministerial assurances are always welcome, I much prefer statements to be made in a Bill—which is what this group of amendments would do. Warm words uttered at the Dispatch Box are always worth having and Ministers can generally be held to account for the promises that they make, but the Minister said:
Several hon. Members made the point that we need to ensure that reasonable and proper safeguards are in place…The hospital manager will retain responsibility for the funds…There will need to be close co-operation between the new carer in the community and the hospital manager. I anticipate that the procedures, which will be put in place when the Bill becomes law, will enable the new carer to apply to the hospital manager for the release of funds, as the occasion arises, to be spent in the most appropriate way for the person's benefit.
The Minister said
I anticipate that the procedures…will be put in place".
We can anticipate many things, but I should much prefer clear-cut legal procedures to be in place, rather than a Minister's anticipation of procedures. We all know that, in English affairs—I cannot speak with the same authority on Scottish affairs—relationships between health services and social services are often, to say the least, tense. Often, the barrier between the two services leads to the most unwelcome disputes in how an individual's affairs are


handled. I am, therefore, concerned to think that the Minister merely anticipates that the two bodies will be able to agree matters between them in a friendly way.
The Minister gave a further assurance. He said:
 I undertake to ensure that further guidance is issued to those who will be required to operate the new provisions. The guidance will set out, for example, how money should be requested from hospital managers, and how hospital managers should consider such requests."—[Official Report, 12 March 1999; Vol. 327, c. 650.]
I do not know whether the Minister will be able to say, in his reply to this group of amendments, that that guidance has become available. As I said, I hope that at least some of the amendments and new clauses in this group will commend themselves, so that the existence of such guidance will not be so important. However, if the Government or the hon. Member for Paisley, North do not intend to accept any of these amendments, the guidance would become very important and it would be good to know what progress has been made in developing it since the Minister gave that assurance to the House on 12 March.
Those are my primary arguments on this group of amendments. However, I had some reservations about amendment No. 1, which, in its final subsection, states:
 "Any person may at any time request that the patient's ability to manage and administer his property and affairs be reviewed by the medical officer in charge of the case.
"Any person" "at any time" seems to be an extraordinarily wide-ranging provision, and I should like to know from my right hon. Friends who tabled the amendment why it proposes such a provision.

Mr. Maclean: rose—

Mr. Forth: Will my hon. Friend give way?

Mr. Luff: I am spoilt by this embarrassment of riches. As I have heard a great deal today from my right hon. Friend the Member for Bromley and Chislehurst, I shall first take the intervention of my right hon. Friend the Member for Penrith and The Border (Mr. Maclean).

Mr. Maclean: I accept that the terminology "any person" seems wide-ranging, but to try to define the individual categories of person who may have an interest—whether relatives, friends or a curator bonis, who is mentioned in the amendment—could lead to a very long list and would inevitably, in some peculiar circumstances, exclude people who are relevant. I therefore felt it better to use the terminology "any person", trusting that those who did not enter that category would have the discipline and the sense not to interfere in the affairs of someone else and behave like a busybody. In any case, the commissioner or medical officer would have the final say on whether and how to proceed.

Mr. Luff: Does my right hon. Friend the Member for Bromley and Chislehurst wish to add to that intervention, so that I can deal with both points at the same time?

Mr. Forth: My hon. Friend is extraordinarily generous in giving way. I wish to take up the other point, just to show how inseparable my right hon. Friend the Member for Penrith and The Border (Mr. Maclean) and I are on

these matters. The phrase at any time is important because the whole point of the safeguards that we seek to introduce is that those with the responsibility under the existing statute, amended by this Bill if it is enacted, must be aware that, at any time, others with the interests of the patient at heart can step in and exercise the powers to be given in the amendment. That phrase is, therefore, an important safeguard and it must not be limited.

Mr. Luff: I understand the import of the amendment. Without wishing to appear invidious, I am no more persuaded by my right hon. Friend the Member for Bromley and Chislehurst than I am by my right hon. Friend the Member for Penrith and The Border. I apologise for that. I am satisfied on the "at any time" provision, but "any person" still seems very wide ranging, given the nature of the disputes that often arise and the question of incapacitated people. That is a matter of concern to me.
I accept that the amendment is important, as it stops a hospital being locked into administering the funds in perpetuity. That seems to be a good thing. If the Minister is comfortable with the words "any person", I hope that the amendment will be acceptable to him and to the hon. Member for Paisley, North, who is in charge of the Bill.

Mr. Swayne: I am not persuaded by the force of the arguments in favour of the amendment. The Bill tackles a clear-cut problem in anticipation of a wider reform that will attend to difficulties that go beyond its scope. [Interruption.] I hear my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) tut-tutting because of my lack of experience of how long situations may persist when it was anticipated that they would be remedied rather sooner. However, the force of that argument is undermined by the fact that the remedies that he seeks to include in the Bill will affect only people whose assets continue to be administered in that way after they have left the hospital to go into community care. Those obligations, and that way of operating, are not imposed on people whose funds will continue to be administered by the hospital because they have remained in the hospital.
Therefore, the amendment introduces two distinct categories to manage the funds available to patients: one set of rules and procedures for those who have been discharged, and another for those who remain within the hospital.

Mr. Forth: I think that I am right in saying that one would not have been allowed to do what my hon. Friend suggests by reason of the long title of the Bill. The Bill authorises
 hospital managers to…hold…the property of persons to whom section 94(1) of the Mental Health (Scotland) Act 1984 no longer applies.
I am no expert in these matters, but I think that I am right in saying that, had we attempted to amend the law as my hon. Friend suggests—I am sympathetic to what he says—we would not have been allowed to amend this Bill as he suggests because of its long title.

Mr. Swayne: I did not suggest for one moment that the Bill was amendable in that way. It is precisely because it is not that the force of the amendments is undermined. Precisely because of the defect in the procedure to which


my right hon. Friend has drawn attention and our inability to remedy it here, we shall be introducing a different set of procedures for patients who remain in hospital.
I shall be brief because I wish to speak on a different matter this morning.

Mr. Maclean: Is my hon. Friend saying that he sees some merit in the amendment, but does not like it because it does not amend another Bill in tandem, or is he suggesting that the amendment has no merit and he would accept it only if all the relevant legislation were amended in a similar fashion?

Mr. Swayne: I hope that the force of what I am saying will become clear as I deal with each new clause and amendment.
New clause 1 would require hospital managers to submit regular reports. I entirely understand the motive behind the requirement and I followed the arguments of my right hon. Friend the Member for Bromley and Chislehurst, who made proper reference to the anxieties of outsiders, friends and relatives, but I fear that a bureaucratic burden would be imposed with regard to one particular category of patients and no other. Pending the wider reform of the law governing the assets of people with a poor record of mental health, which we have been promised, it would be unwise for us to complicate the Bill by introducing that distinction.

Mr. Maclean: I disagree profoundly. Adrian Ward, an expert in the matter, in his book "The Power to Act", said that hospital management provides
a relatively quick and inexpensive method of administrating funds and possessions of a modest value. It avoids the cumbersomeness of accounting to, and supervision by, the…Court. It does not impair any existing legal capacity.

Mr. Swayne: Precisely. Is there any need, in that case, to add the bureaucratic burden of regular reports from which patients who remained in the hospital would not benefit?
I wonder whether the requirement in subsection (2)(a) of new clause 1 is a proper one to place on the medical officer. I refer to my own experience in a constituency case in which there is a profound disagreement between the parents of a mentally ill individual and his medical carers. The latter take the view that he is capable of administering his affairs, and the former that he is not. I wonder whether the medical officer is capable of taking decisions on issues that govern the protection of standing orders, assets and other items.
To an extent, my concern about subsection (2)(a) is ameliorated by amendment No. 1. I would not want the new clause to be added without the amendment, but for larger reasons I would prefer that neither of them be added.
New clause 4 is entirely understandable, but its force is undermined by the fact that the right of appeal would apply only to those patients who have been discharged, whereas those who remain in the hospital, who might equally have a grievance, would not benefit. There is an

argument that says that simply because some people cannot benefit from a remedy, we ought not to allow no one to benefit from it.

Mr. Maclean: Precisely.

Mr. Swayne: As the relevant law is shortly to be reviewed in its entirety—quite properly, that will happen in the Scottish Parliament, not this Parliament—such matters should be left for the Scottish Parliament to deal with; it is not for us to sort them out.
The motives that lie behind the amendments and new clauses are proper and understandable, but I fear that they would place a bureaucratic burden on hospitals, because of the administration required of them in the preparation of reports. More fundamentally, the amendments and new clauses would also introduce a different way of dealing with the property and assets of two categories of patients, and I believe that that is not currently justified.

Mr. Maclean: I shall speak to the amendments and new clauses tabled in my name, most of which also bear the name of my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth). In view of the thrust of the argument advanced by my hon. Friend the Member for New Forest, West (Mr. Swayne)—that we should not make the amendments now, although he seemed to say that they had some merit, merely because, by the nature of the Bill, they cannot cover everyone—I may now have to elaborate slightly more than I intended if I am to persuade him of my case.
Many amendments have been tabled, and there is little time available to debate them, but this first group goes to the heart of the Bill; it is the most important group.
Both new clauses mention the Mental Welfare Commission, so I must explain why I chose that. New clause 4 says
Any person shall have the right to appeal to the Mental Welfare Commission against…the holding by the managers of a hospital of money or valuables…or…the expenditure of money or disposal of valuables
and so on.
I picked the Mental Welfare Commission for Scotland because it plays a major role in protecting the persons and interests of mentally incapable adults, whether they are in hospital, other institutions or the community. In financial affairs, it must inquire into any case in which it appears to it that such a person's property may be exposed to loss or damage. It must also notify any hospital or local authority when it considers that it should exercise its functions to prevent or redress loss of or damage to property. In addition, I understand that it has various duties to visit patients detained in hospital.
In 1997, it was estimated that in our population up to 100,000 people were incapax at any one time. This number is likely to grow rather than decline, as life expectancy outstrips medical science's ability to prevent or cure the various forms of age-related mental deterioration.
The Mental Welfare Commission plays a vital role and seems a relatively cheap and efficient mechanism for reviewing how mental patients are treated in hospital. I suggest to the Minister that that is a better mechanism. Giving people a right of appeal to the commission is far better than resorting to common law.
My hon. Friend the Member for New Forest, West criticised our suggestion on the ground that it would place an awful bureaucratic burden on hospitals. That is wrong. I do not think that he understands how funds are managed now. New clause 1 states:
Where the managers of a hospital exercise their powers under subsection (3A)…they shall submit regular reports in writing".
I hope that I shall be able to prove that that is not a bureaucratic burden. There is already a variety of ways in which the finances of a mentally incapable adult can be managed in Scotland. Indeed, it is probably the fragmented and archaic nature of those mechanisms, and the fact that they can fail to provide an adequate remedy in many common situations, that have prompted that widespread call for wholesale reform of the law governing them to which my hon. Friend referred. However, I shall not go down that route.
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The management of a mentally incapacitated person's affairs is usually separate from the management of his personal welfare. Different types of managers have powers to take care of each of those aspects, and financial managers are appointed to deal with patients' financial affairs. My hon. Friend the Member for New Forest, West should therefore not try to state that giving people in hospital a right to appeal and requiring a report to be made not later than 18 months after their discharge from hospital would place a bureaucratic burden on hospital management, affect patients' treatment or bog down the health service.
Under section 94 of the Mental Health (Scotland) Act 1984, hospital patients liable to be detained under that Act or who are receiving treatment for their mental disorders can have their funds administered by the management of the hospital. There is no equivalent legislation authorising the managers of other care establishments to manage the finances or property of incapable residents. Recent investigations by the Mental Welfare Commission suggest that most incapable patients whose funds are managed by the hospital suffer from chronic schizophrenia, learning disability or dementia. They have usually been in hospital for a number of years, and most do not have contact with relatives.
All that is required for the hospital to take over management of a patient's funds is for the responsible medical officer to state that, in his opinion, the patient is incapable of managing or administering his property and affairs by reason of his mental disorder. My hon. Friend the Member for New Forest, West questioned the adequacy or ability of the responsible medical officer to make that judgment, but who else could make it? That has to be a medical decision. It cannot be taken by an accountant, a banker or by the hospital's financial managers.

Mr. Swayne: With the greatest respect to my right hon. Friend, that is fatuous nonsense. Many people are inadequate at managing their financial affairs, but they do not require a medical officer's certificate saying so.

Mr. Maclean: My hon. Friend is missing the point. He is, of course, right to say that many people who are not detained in mental hospitals under the mental health legislation make a mess of managing their finances. Many

people's financial affairs are not as good as they should be. My wife says as much to me every month when the bank statement arrives. Perhaps I should not visit Scotland, but neither there nor in England have I been detained under the mental health legislation—much to the consternation, sometimes, of hon. Members on both sides of the House. My point is that the treatment of a person detained under the mental health legislation must be left to the judgment of doctors. I am sure that my hon. Friend accepts that.
A doctor judges whether a person with chronic schizophrenia, dementia or some other disability is capable of leading a safe life in the community, or whether he or she must be detained in a mental hospital. Surely the doctor, therefore, is also the only one who can decide whether that person—given that he or she is unable to live an ordinary life without support from the medical services in hospital—is capable of managing his or her finances. I cannot think of anyone else able to make a judgment of the mental ability of another human being. I do not want to elaborate further on that point but, having dealt with it now, I may be able to speak more briefly about one of the other amendments.
The powers available to hospital managers under section 94 of the 1984 Act, which the Bill would amend, are limited to receiving and holding money and valuables and expending them for the patient's benefit. As I understand it, hospital managers must have regard to any sentimental value that an article may have or would have had to the patient, but for his mental disorder which results in him no longer being able to make a judgment on such sentimental value. However, no further statutory guidance on how those powers can be exercised is given.
There have been concerns that staff feel that to spend money on certain patients would be to waste it and that, consequently, no great effort should be made to ensure that all income available to the patient is claimed or that any money received should be preserved instead of being used to enhance the patient's quality of life. On the other hand, it appears that, in some cases, the money was being used to purchase goods or services that would normally be provided by the national health service. I will not go back to the Crosby report 1985, but that made various recommendations on how to deal with that problem. The new clauses and amendments that I and my right hon. Friend the Member for Bromley and Chislehurst have tabled deal with such worries and concerns.
If we grant under new clause 4 the right of "any person" to appeal to the Mental Welfare Commission against decisions, it would give the detained person such a right, as it would family, friends or other relatives. The terminology "any person" would also give concerned bodies and individuals, boards of visitors and organisations such as MIND the right to take up cases that they think appropriate. I accept the downside that, theoretically, some nosey parkers with no right whatever—they may have a caring interest in the patient but no familial or financial interest—could be given the right to interfere and appeal to the Mental Welfare Commission. I have had to make a judgment on how grave is that risk. I think that it would be very slight.
I am not suggesting that the commission must take action in every case and is bound by the person who appeals to it to do so. It must of course consider the case, but if it concludes that the person who is appealing has no locus or ground and that the appeal is a load of


nonsense, it is not bound to proceed. Indeed, there may be the odd occasion when, no doubt, a nosey parker with no other right raises a good point in caring about someone's mental welfare which has not been previously considered.
When I used the terminology "any person" in new clause 4 and elsewhere, it was deliberate because I was afraid that if I tried to define who might have a specific and good reason for such an appeal, I would limit the range of those who would be able to appeal and miss some who had a perfect right to do so.
I would be happy if the Minister said that the terminology was too wide and that there is a list or schedule already in some Act that I could not find of people who may have that right and that it covered everybody. I would accept that and amend my amendments accordingly. The right of appeal is on the expenditure of money or disposal of valuables. That would deal with the concerns of staff and others that sometimes inappropriate judgments have been made on spending patients' money or getting rid of their valuables.
I thought that I would address new clause 4 first in order to try to reassure my hon. Friends who are hostile to its intent. In new clause 1, I suggest that hospital managers must make regular reports in writing to the Mental Welfare Commission. I do not need to explain any further why the commission is the best body to which the report should be made, suffice it to say that it already exists and clearly plays a valuable role in Scotland.
Such a requirement would not impose a heavy burden on financial managers who would have to exercise the responsibility. They have to keep accounts and records in any case. They need not call a case study group to discuss the patient. They already have to keep records of how much is spent and on what it is spent. I am suggesting that all that be combined into a short report to the Mental Welfare Commission, showing what judgments have been made. I do not envisage that that would be a heavy burden on financial managers. It is not a burden on medical staff or doctors; they are not the ones who do it.
New clause 1 states:
(2) A report under subsection (1) shall be submitted no later than 18 months after the discharge from hospital of the patient concerned, and thereafter on an annual basis, until such time as either—
(a) the patient is considered by the medical officer in charge of his case to be capable of adequately managing and administering his property and affairs".
That is eminently sensible. I shall not try to persuade my hon. Friend the Member for New Forest, West that the medical officer is the appropriate person. If he wishes to tell me of someone better, I might be persuaded.
There is another important point that none of my hon. Friends has dealt with. New clause 1 says that reports shall be submitted until either the patient is considered to be capable of adequately administering his property and affairs or
(b) a curator bonis is appointed in respect of that person.
My hon. Friends will ask why I have picked a curator bonis instead of any other system. "Curator bonis" is wonderful Scottish terminology. It is one of those examples where Scots law, based on Roman Dutch law, has something to give the United Kingdom, if only we

were wise enough to take some parts of it and if only Scotland were wise enough not to go its own way. However, that is another route, which we shall not take today.
A curator bonis can be appointed to manage the assets and affairs of a person over 16 who lacks the capacity to manage his own financial affairs. It is highly relevant—which is why I have put it in new clause 1—because it is the most widely used general legal procedure for managing the funds of a mentally incapacitated person. As I said in introducing my remarks, Scotland has a wealth of means of managing the affairs of people in hospital, or of people generally who may be incapacitated. I have discussed the hospital management system; the curator bonis is the most widely used alternative.
The curatory—that is, the appointment of a curator—can often be the default mechanism. A local authority must apply to the court to appoint a curator if no one else is doing so, and a curator should then be appointed. A curator is a specific type of judicial factor, which is a general term for a person appointed by the court to do something on behalf of another person. Applications to appoint a curator bonis are to the Court of Session or the sheriff court in Scotland, and must be supported by two medical certificates saying that the person is of unsound mind. The incapacitated person or his relatives are entitled to oppose the petition. I hope that two medical certificates saying that a person is of unsound mind would be satisfactory to my hon. Friend the Member for New Forest, West, and that he will not criticise that aspect of new clause 1.
Curators bonis are under the supervision of the accountant of the court, to whom they must submit annual accounts for audit. Without trying to be arrogant, I believe that this is where my new clause is quite clever, in that, by picking a curator bonis and saying that managers must submit annual reports, I am trying to impose on the managers of hospitals a burden similar to that which curators bonis currently have. That is also why I put curators bonis in my new clause. Curators bonis are remunerated for their efforts and are usually professional people, such as solicitors. I shall return to that.
On appointment, a curator automatically supersedes hospital management, any Department of Social Security appointees and most other managers under specific statutory provisions. However, a curator is, in turn, superseded by the appointment of a tutor-at-law, if that happens. It is relevant for me to explain briefly to the House about curators bonis because, even if we have the hospital management system, if a curator bonis is appointed he automatically outranks the hospital management and takes over from it.
We now come to what some of my hon. Friends who are not lawyers may consider to be a downside. Most curators bonis are solicitors, and most of them do not work for free. Indeed, it is said that curators can be expensive. The Law Society of Scotland will no doubt justify that and write letters to colleagues and to myself, which I shall pick up and read in good time if I have got it wrong. The funds of the ward must cover the court petition to appoint the curator, his on-going remuneration—which is determined annually by the accountant of the court on a percentage basis with the aid of complex tables—the annual audit costs and the costs of any further court applications to authorise particular actions by the curator.
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It is now generally recognised that curators should not be appointed for estates of less than about £50,000. It is uneconomic to do so. I assume, without going into the details, lawyers' fees will amount to £49,000 on an estate of less than £50,000. That is the underlying message that I receive from the information that I have dug out in my studies.
New clause 1 therefore suggests that annual reports will be submitted by the financial managers of mental hospitals. That would mirror the present requirements of curators bonis.

Mr. Swayne: That would be the exact mirroring of what the curator bonis would achieve. My right hon. Friend has given us a taster of what curators bonis would charge for the service. Why should the burden be imposed on hospital managers, who will be expected to undertake it, out of the public purse, for nothing?

Mr. Maclean: The costs of curators bonis are apparently quite high, but that is not purely because they are required to submit an annual report. The annual report and audit are only tiny parts of the legal bill. In any event, I think that a hospital manager, even a highly paid extortionate hospital manager charging for his time, might not charge at the same hourly rate as a solicitor who is a curator bonis. My hon. Friend has used a rather bogus argument to try to suggest that we should not have annual reports from hospital management because one day that might become as expensive as the cost of a curator bonis, bearing in mind all the other things for which the curator bonis is entitled to charge in administering the estate of somebody incapacitated.
I suggest that an annual report should be prepared until such time as the medical officer says that the person is capable or a curator bonis is appointed. If a curator bonis is appointed, there will be an annual report in any event, and it will be costly.
I move on briefly to deal with the other amendments. I do not intend to speak at length because my right hon. Friend the Member for Bromley and Chislehurst covered them adequately.

Mr. Forth: Only adequately?

Mr. Maclean: More than adequately; that is what I intended to say.
Amendment No. 1 mirrors part of what I seek to do in new clause 4. The amendment reads:
The managers of a hospital may exercise their powers under this section until such time as either…the patient is considered by the medical officer…to be capable…or…a curator bonis is appointed…Any person may at any time request that the patient's ability to manage and administer his property and affairs be reviewed by the medical officer in charge of the case.
I rather like the last part of the amendment because it would give any person the right to suggest to the medical officer that the patient's mental capability to administer his own financial affairs should be reviewed.
There may be accidents because we know that at some of the larger mental hospitals, reviews are sometimes not carried out as expeditiously as they should be. Files may be delayed at hospitals dealing with large numbers of patients, or a patient's annual or six-monthly review may

not take place when it should. Little hiccups of that sort occur. I am not criticising medical authorities or any particular mental hospitals; I am merely saying that hiccups occur in organisations dealing with tens of thousands of people. The new clause will give any person at any time the right, if he discovers a problem, to say to the medical officer, "Why has case X not yet been reviewed? We think that he is capable of administering his affairs." Organisations such as MIND or other hospital visitors, or visiting psychiatrists or doctors, may think that a case should be reviewed. That is sensible.
The purpose of amendment No. 1 is to ensure that in the case of an incapax patient who has been discharged, whose money is held by hospital managers, and who is subsequently able to deal with his affairs, the amendment would automatically give him the right to assume control of his own assets. It would also guard against the hospital being locked into administering funds in perpetuity. It is a well balanced, even-handed amendment, which prevents the hospital being stuck with administering the funds for ever more, and gives a guarantee to the patient that he can regain control of his assets in the event of him being judged able to administer his own affairs.
I shall deal briefly with amendment No. 2, which was a source of controversy among some of my hon. Friends. If it is accepted, the Bill will read:
The managers of a hospital may, for a period not exceeding five years following the discharge of the patient, continue to hold money…and receive interest…and expend money".
The amendment inserts a time limit of five years. The purpose of the amendment is similar to that of new clause 3, which restricts the responsibility of the hospital managers to discharge patients who continue to live within health board boundaries. I cannot discuss that as it was not selected, but the amendment is comparable to that. It prevents managers having to assume an unacceptable administrative burden.
The amendment would place a five-year limit on the time for which hospital managers administer the assets of discharged patients who remain incapax. Some of my hon. Friends consider five years too long. I am not certain whether it is the correct period. However, it is a long-stop provision, as my right hon. Friend the Member for Bromley and Chislehurst said. There is nothing to stop the hospital managers concluding that the person should have his funds restored before that time. I cannot find the quote from the Scottish Association for Mental Health, which argued for a six-month review period or a six-month time limit. The association certainly argued for a long stop, and the time it suggested was considerably shorter than that proposed in the amendment.
I urge the Minister to consider such a provision. There must be some cut-off point at which the hospital ceases to administer the funds. It cannot be right that the hospital management should continue to administer the affairs of a patient who was discharged 10 or 15 years previously.

Mr. Graham Brady: Will my right hon. Friend give way?

Mr. Maclean: I must conclude.

Mr. Brady: I shall be brief. Does my right hon. Friend agree that that is true not just of funds, but particularly of valuables, which may have sentimental value to the former patient?

Mr. Maclean: I am grateful to my hon. Friend for that intervention, which leads me nicely into my remarks on amendment No. 5, which deals with valuables and other items that may be of sentimental value.
First, however, I shall conclude my remarks on amendment No. 2. There is nothing magical about the five-year period to which the amendment refers, but some limit is necessary. I shall be happy to accept the Minister's advice whether three years is the correct term, or six months or 10 years.

Mr. Forth: The trouble is that we cannot change the amendment now. This is the last gasp of consideration. Unfortunately, the House has put itself in a position where we must accept either the original Bill or some—or, we hope, all—of our amendments and new clauses, but nothing else. My right hon. Friend therefore has a problem. He must stick to his proposed period of five years, or he is not going to have anything at all.

Mr. Maclean: I am grateful to my right hon. Friend for pointing out that the Bill cannot go to another place for amendment. Nevertheless, I expect the Minister to say today that he is aware of the point, and that legislation is being prepared for the new Scottish Parliament. That may be the wider Bill for which my right hon. Friend has called, or a Bill to deal with this matter.
I understand that there is a need for further mental health legislation in Scotland with which the Scottish Parliament can deal. I hope that the Minister can reassure me—whether we are talking about a period of two, five or seven years—that legislation will be proposed to deal with the problem. If he sees merit in the proposal, a measure can be introduced here—we will be happy to deal with legislation relating to the Union—or in the Scottish Parliament. I see merit in the proposal, as do my right hon. and hon. Friends.
Essentially, amendment No. 5 is a probing amendment to ensure that the terms used in the Bill, such as "money", adequately cover all assets that an incapax patient may hold. It may be that there is an established precedent for what the terms mean. However, as the Bill extends the powers of hospital managers, it is sensible to ensure that all assets held by the patient are covered.
The Minister can answer my point in one of two ways. He can say that he will propose legislation in either the UK Parliament or the Scottish Parliament, or he can say that the term "money" is defined somewhere else, such as the 1994 Act—although I must confess that I did not spot it—to include bank notes, coins and sums deposited in a bank or building society account. If so, I will be satisfied.
The amendment also lists other forms of financial assets which a person might hold, or acquire via an inheritance. Again, the list is not exclusive, but it covers the most popular forms of non-bank account investments. That is very important. The Minister may tell me not to worry and that the matter is covered in existing legislation, or that the interpretation of the law will be that that is the case.
The amendment states that money, financial assets and investments and valuables
shall include sums and items inherited by the patient when resident in hospital or subsequent to discharge from hospital.
This is the key part of the amendment. For example, a patient may be left property or money in the will of a deceased relative, or he or she may receive a windfall

payment from a building society which has converted to a bank. It is not clear from the Bill if such moneys could be administered by the hospital management. The amendment would ensure that they were covered. I shall not push the amendment to a vote if the Minister can reassure me that this crucial matter is covered.
This morning, we have dealt with Bills concerning human beings. It is terribly important for this Parliament to deal with such measures. The first Bill that we debated today dealt with one human being who may have suffered a terrible injustice, and the House spent two and half hours dealing with it. This afternoon, we are dealing with a Bill relating to individuals who are still alive, but whom medical practitioners have ruled to be incapable and who must be detained in hospital. If they are released, the state has decided that they would be incapable of managing their affairs and that we should run their assets. That is a grave step to take, but it has been taken over the years by various Parliaments which have given powers to medical practitioners to detain people by reason of mental incapacity.
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If we are to have such legislation on the statute book, and if Parliament is to pass this amending Bill—I hope that we shall do so, and I do not intend to prevent that from happening even if the Minister rejects my amendments and new clauses—it is beholden on hon. Members to make sure that they build in all the safeguards they can.
On the selection list, this group of amendments and new clauses has been entitled "Safeguards". I did not choose that title; perhaps it was chosen by you, Mr. Deputy Speaker, or your office. That is what they are—safeguards for human beings. We are dealing with important legislation this morning and it has been a privilege to discuss provisions that I think may improve it. However, I am willing to be persuaded that the amendments are not necessary or that these matters can be dealt with in the other place. This time, that other place is 300 miles up the road.

Mr. Peter Brooke: I shall be very brief. This group of amendments and new clauses stands in the names of my right hon. Friends the Members for Bromley and Chislehurst (Mr. Forth) and for Penrith and The Border (Mr. Maclean). I pay genuine tribute to their assiduity—not only today, but on previous Fridays—to the cause of private Members' legislation. They have been subjected to some criticism outside the House, which I think has been wholly misplaced. Some might say that that is a charitable view, because one of the victims of their stern and unbending approach has been a Bill of mine which commends itself to many people inside and outside my constituency and which would correct an offence that literally lingers disagreeably in the nostrils of mankind.
My right hon. Friends' emphasis is on legislation receiving proper scrutiny. It is a truism that we pass too much legislation and that it is insufficiently scrutinised by the House. The Home Secretary had to come to the House recently to confess to a massive omission from the Prevention of Terrorism (Temporary Provisions) Act 1989. Had that omission been exposed by a major terrorist offence between the passing of the Act and the discovery


of the omission, it might have occasioned his resignation. It would also have reflected on Parliament as a whole. If that would have been a major setback in the context of terrorism, how much more so are omissions in the context of mental health?
I shall not dwell on the Bill that we debated earlier this morning because you would rule me out of order, Mr. Deputy Speaker, but it was also occasioned by an omission from previous legislation. Relevant to that legislation were the Mental Health Act 1961 (Northern Ireland), the Mental Health (Northern Ireland) Order 1986 and the Criminal Justice (Northern Ireland) Order 1998. I strongly support the assiduity of my right hon. Friends, who have brought this group of new clauses and amendments to the attention of the House, discussed the cause of mental health and highlighted the interest in the proposals, which has been severally represented to them, of organisations outside the House. That is a riposte to those outside the House who have criticised them for their diligence in respect of legislation of this sort.

Mr. Edward Leigh: It is an honour to follow my right hon. Friend the Member for Cities of London and Westminster (Mr. Brooke) and I agree with his remarks about the need to give adequate scrutiny to such Bills, which are so important to people. I emphasise the word "people" and I am glad that we are undertaking that scrutiny. My right hon. Friend the Member for Penrith and The Border (Mr. Maclean) has been so assiduous and so comprehensive in his remarks that it is not necessary for me to detain the House for long, except to highlight one or two of the points that I believe need to be made. I support the new clause because it would add to the efficacy of the Bill.
Our debate has concerned the nature of the Mental Welfare Commission for Scotland and its role. No doubt we will be reassured be the fact that it must
enquire into any case where it appears to them that such a person's property"—
that is, the property of someone covered by the relevant Acts of Parliament—
may be exposed to loss or damage. It must also notify any hospital or local authority when it considers that they should exercise their functions in order to prevent or redress loss or damage to property. In addition, the MWC has various duties to visit patients who are detained in hospital.
I am absolutely sure that the MWC carries out its duties assiduously, but we are considering conferring extremely wide powers. I think that we should inquire carefully into the extent of those powers, and ensure that the interests of patients—albeit patients who may be very sick, and who may be incapable of running their own affairs—are properly observed.
My right hon. Friend the Member for Penrith and The Border quoted from a report stating that hospital management provides
a relatively quick and inexpensive method of administering funds and possessions of a modest value. It avoids the cumbersomeness of accounting to, and supervision by, the Accountant of the Court.
No doubt the House will agree that that is a good way of managing the interests of patients, but it must be said that the powers vested in hospital management in regard to patients' funds are extremely wide. The new clauses and amendments contain safeguards to deal with that.
Only one medical certificate is required for a patient's funds to be controlled by hospital management, and there is no opportunity for the certificate to be challenged.

There can be no consideration of the evidence in a hearing. Management by a hospital's central managers may be regarded as remote and impersonal. No individual is to be appointed with specific responsibility for the funds of particular patients. It is not clear whether the duty to receive money extends to withdrawing money from a patient's bank or building society account so that it can be spent on the patient's welfare. The current limit of £50,000—which seems to give considerable latitude to those controlling the funds—could appear excessive, given that curators would almost certainly be appointed for mentally incapable people with estates of that size living outside hospital.
Although the powers vested in hospital management in regard to incapable patients are clearly very wide, there is no right of appeal. No one is suggesting that hospitals will set out to mismanage funds; all that my right hon. Friends are suggesting in the new clauses and amendments is that the Bill should allow patients some guarantee, and some right of redress against hospital managers who fail to administer their finances in their best interests. Such cases may be rare, but it should be borne in mind that we are not necessarily thinking in terms of purely financial mismanagement. Sentimental value may well attach especially to articles, but perhaps even to funds of some sort, and hospitals may take insufficient account of that.
Section 94(3) of the Mental Health (Scotland) Act 1984 allows managers to
expend that money or dispose of those valuables for the benefit of that person and in the exercise of the powers conferred by this subsection the managers shall have regard to the sentimental value that any article may have for the patient, or would have but for his mental disorder.
We all know that it might be extremely difficult for hospital managers, given their wide powers, to reach a definite conclusion that was fair in terms of the sentimental value of any given article. I see no harm in providing for an annual report of the kind envisaged in new clause 1, enabling the way in which hospital management runs a patient's affairs to be laid down in print, and enabling the patient's family to be reassured about what is going on.
There are a number of concerns about the Bill, which are made even more pertinent by the extension of the powers of hospital management for which it provides. We need a precise definition of "benefit to the patient"; no doubt the Minister will be able to help us in that regard. If a manager spends money for the benefit of the patient, what rights will the patient's family have if they disagree with the expenditure, or with any part of it? Perhaps the Minister will be able to reassure us about this. At present, hospital management and the Mental Welfare Commission can work with the family, but what rights will the family have? It seems that, under existing legislation and under the Bill as proposed, they have few rights.
In the event of such a disagreement, what provision is there for arbitration? As an associate member of the Chartered Institute of Arbitrators, I take an interest in arbitration. I hope, if all goes well with various exams, to become a fellow of the institute. There is no mention of arbitration in the Bill. After all, in virtually every other dispute, people can either take the matter to a court of


law, or it is laid down in a contract, or in agreements within the business that disputes will be referred to arbitration.

Mr. Forth: My hon. Friend may recall that, earlier in the debate, someone—I forget who—pointed out that the Minister had said, and I find it almost beyond belief, that people should not worry because, if anything went wrong, they could resort to the common law, to the courts, to put it right. With his obvious expertise in and commitment to the principle of arbitration, does my hon. Friend agree that the amendments are far preferable to forcing people, especially those who are perhaps vulnerable, to resort to the courts for a fair hearing?

Mr. Leigh: I am grateful for that intervention. The whole point of arbitration is to provide an inexpensive alternative to court procedures, which are cumbersome and long-winded, and to which it is difficult for ordinary members of the public to have access. Given the cases that we are talking about, where I doubt that large sums of money will be involved, where people may be of very modest means and mentally incapable, I do not think that people will go to common law.
I would much rather have a Bill that set out a safeguard in clear terms. What the Bill proposes is right. Of course, there should be a procedure by which the affairs of a patient who goes into the community can be managed properly, but the amendments propose that there should also be a safeguard for the family—some right of redress, some right of appeal, some written report to which they can refer. As I understand it—I may be wrong; perhaps the Minister can reassure me—there is none at present. That is not fair.
By requiring hospital managers to submit regular reports to the Mental Welfare Commission, by allowing the relatives, or guardians of patients to have access to those reports, and by providing the right of appeal against decisions of the managers, we will put those safeguards in place. They would strengthen the Bill, not weaken it. I hope that the Minister and the promoter of the Bill will accept the amendments.

The Parliamentary Under-Secretary of State for Scotland (Mr. Calum Macdonald): I acknowledge the supportive nature of all the amendments to the general thrust of the Bill and the supportive nature of the comments made so far in the debate. I welcome the good wishes that have been extended to my hon. Friend the Member for Midlothian (Mr. Clarke), which I warmly endorse. I also welcome the role of my hon. Friend the Member for Paisley, North (Mrs. Adams), who is acting as the promoter of the Bill.
I appreciate the underlying sentiments of new clause 1. It deals with the welfare of the person concerned and the importance of avoiding any impropriety in handling his or her affairs.
A number of arrangements, or checks and balances are already in place, which will help to ensure that the resources in question are used to the optimum benefit of the patient. For example, section 94(2) of the Mental Health (Scotland) Act 1984 already requires hospital managers to obtain the consent of the Mental Welfare

Commission to administer the funds of incapacitated persons where such funds are in excess of a figure agreed by the First Minister. Currently, that figure is £5,000. It follows, therefore, that in any such case the commission will be aware of the existence of those funds and could at any time in the exercise of its protective function under the 1984 Act make inquiries about the use of the resources in question. If, for example, there was a suggestion of improper use, it could bring the matter to the attention of the First Minister, the health board concerned or any other relevant body.
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Secondly, and in addition to the procedure that I have just mentioned, the commission has asked hospital managers to obtain its consent to any single or cumulative item or items of expenditure purchased from a patient's capital exceeding £500 in any one year. That figure is kept under regular review and was set at £500 on 1 April this year.
Thirdly, such expenditure on a person's behalf will be subject to scrutiny by the auditors. Any irregularity or improper use could also be detected in that way.
Fourthly, hospital managers already notify the commission of all cases in which they are managing the resources of patients in hospital under section 94. The commission, in turn, already examines in the course of its hospital visits whether the powers under section 94 are being properly exercised and whether the resources of the patients concerned are being managed to their satisfaction.
By way of reassurance to the hon. Member for Gainsborough (Mr. Leigh), the Scottish Executive has made it clear that it will ensure that in the administrative guidance that will follow the enactment of the Bill, hospital managers are asked to notify the commission of all cases in which they are managing the resources of persons who want to live in the community. The commission will also be invited to include those persons in the scrutiny that it already undertakes under section 94 arrangements.
Finally, as my hon. Friend the Member for Strathkelvin and Bearsden (Mr. Galbraith), the then Minister, made clear on Second Reading, the new Administration in Scotland is about to issue new guidance on managing the resources of incapacitated patients who live in the community. That will provide clear guidance to hospital managers on the how the resources that they are managing can best be used to benefit the patient concerned. A number of safeguards are already in place and I understand that they operate to everyone's satisfaction. Those safeguards will be extended to all new cases that come within the scope of the Bill.
New clause 4 would introduce a right of appeal for persons who leave hospital to live in the community and continue to have their funds looked after by the managers of the hospital that they have left. The appeal, which could be raised by any person, could be against the continuing management of such a person's resources by the hospital or against the way in which their money and valuables have been managed. Currently, no formal right of appeal is available to patients in hospital under section 94 of the 1984 Act, but as hon. Members have acknowledged and as one might expect, hospital managers go about their task


with diligence, thoughtfulness and care. A range of safeguards is already in place, some of which I described in my reply to new clause 1.
If, however, there was evidence that hospital managers were continuing unnecessarily to manage the funds of a person or that they were expending his or her funds inappropriately, at common law that person could make an application for the return of those funds at any time. [HON. MEMBERS: "Oh."] I ask hon. Members to contain their disappointment until I have finished this point.
Patients can apply for the return of their funds at any time if it is apparent that they have recovered the capacity to manage their own affairs. That is an important protection and should be acknowledged as such. If hospital managers refuse to accede to such an application, they will be open to judicial review.
Similarly, if it emerged that hospital managers were inappropriately disposing of a person's resources, redress could be sought in the courts. That facility would apply regardless of whether the person was in hospital or had left hospital to live in the community.

Mr. Luff: The Minister is raising one of the precise issues that I raised in my speech. The remedies that he is suggesting are very expensive, but would affect only small sums. Judicial review in such cases would, frankly, be preposterous.

Mr. Macdonald: The point that I was about to make is that there are other forms of protection. Nevertheless, it is important to note that common law protection is available—as is the possibility of judicial review, which is an important but not the only safeguard. It would also be open to the person, or to someone on his or her behalf, to ask the Mental Welfare Commission to investigate any suggestion of impropriety, or other shortcomings, in the handling of the person's property.
I assure hon. Members that the commission has wide-ranging powers to investigate complaints, which can come from any person—including, of course, relatives. I therefore do not think that new clause 4 is necessary. There are already sufficient powers, both at common law and—in the 1984 Act—in the Mental Welfare Commission's powers, to ensure that a person's property being managed by the hospital is adequately protected. With that assurance, I hope that hon. Members will not press new clause 4 to a Division.
We believe that amendment No. 2 is also unnecessary. As has been made clear in the Scottish Parliament—and mentioned in this debate by the hon. Member for New Forest, West (Mr. Swayne)—it is proposed to introduce, in the autumn, an incapable adults Bill that will provide for a comprehensive new system for dealing with the finances of incapable adults. It is envisaged that the Bill—subject, of course, to the wishes of the Scottish Parliament—would be enacted and operational well within five years. In that case, hospital managers' responsibility for persons who leave hospital to live in the community should essentially cease—so that amendment No. 2 would have no practical effect. I therefore hope that hon. Members will also be persuaded not to press that amendment.
As for amendment No. 1, section 94 of the 1984 Act already requires the medical officer responsible for the patient's treatment to state that that person is incapable of

managing his affairs. The section also makes it clear that, when a curator bonis is appointed, hospital managers' responsibility ceases. In the course of the regular medical assessments that a patient in hospital will receive, the doctor will normally determine whether the patient remains incapable of managing his or her affairs. When capacity has been regained, clearly, the responsibility of the hospital manager will terminate. The same applies to patients living in the community.
I recognise, however, the importance of regular medical reviews—which is perhaps the underlying point of the amendment. It is therefore proposed that—in a guidance circular to hospital managers and other interested parties that will follow the Bill's enactment—stress will be placed on the importance of conducting regular assessments of the person's condition, whether in hospital or the community, to determine the person's capacity or otherwise to manage his or her own affairs.
It would also be open to any person at any time—as the amendment envisages—to request that a patient's condition be reviewed. That point will be covered in the proposed circular, to ensure that hospital managers are clear that, when an approach is made on behalf of a person in that regard, it is duly honoured in exactly the way intended by the amendment.
In addition, good practice guidance, which the Scottish Executive plans to issue in the near future on the management of incapacitated patients' funds, will stress the importance of regular checks on patients' capacity, whether in hospital or in the community. With that assurance that the point will be incorporated in circulars and guidance, I hope that hon. Members will not press that amendment to a vote, either.
I do not think that amendment No. 5 would be helpful. The right hon. Member for Penrith and The Border (Mr. Maclean) said that it was intended as a probing amendment to discover the meaning of the terminology. One of the chief merits of the Bill is its simplicity and the neat solution that it proposes to a pressing problem: the current legal impediment that prevents hospital managers from releasing funds when a patient leaves hospital. We need to retain the general thrust of section 94 of the 1984 Act, which this Bill amends. Section 94 refers specifically to money and valuables. For the time being, there is no need to depart from that simple terminology, which allows hospital managers to adopt a flexible, common-sense approach to their responsibilities for the resources of persons in their care.
The Bill is already designed to deal with money and valuables held by hospital managers, or interest accruing on those. It is not envisaged that, after a patient goes back into the community, new money, for example from pensions, will be managed by the hospital manager. Arrangements for the new money will be made in the normal way. For example, the new carer or a Department of Social Security appointee will manage moneys received after the patient is discharged from hospital.
Before a patient goes back into the community, the hospital and social workers plan that discharge and make arrangements for the patient's welfare. Planning for management of the patient's income is part of that task. Arrangements are often made for pensions and similar regular payments to be paid to someone on the patient's behalf—generally a DSS appointee or some other appointed person.
Obviously, one would expect that, where a patient had a large financial portfolio, a curator bonis would be appointed, or other arrangements made, to look after such assets. There is, however, flexibility in the provisions for hospital managers to exercise discretion on the approach to those matters. It is important that that flexibility be allowed to continue.
If there is a case for change, we would all agree that it would be best dealt with within the larger canvas of the incapable adults Bill, which is being prepared for the Scottish Parliament. I therefore urge that the amendment be withdrawn.
I hope that none of the amendments will be pressed to a vote. Although they contain some good points, the Scottish Executive has given assurances that they will now be incorporated in new guidance.

Mr. Forth: May I express my gratitude and appreciation for the typically courteous manner in which the Minister has replied to the debate? He has dealt with the material seriously and has gone out of his way to deal with the matter fully and courteously, which is not always the case in Friday debates. I do not, therefore, want to be unhelpful.
I much appreciated the detailed reply that the Minister gave on new clause 1, as it reassured us that the worries that we expressed can be dealt with in a number of different ways, and not necessarily as described in the new clause. The hon. Gentleman went out of his way to identify how that could be done, which was reassuring.
I was worried about the Minister's response to new clause 4, until he reached his punch line. He spoke about resorting to the courts and judicial review, which most of us feel would not be of much use to the individuals in question.
When the Minister said that the commission could always hold an investigation, that must have reassured everyone other than members of the Law Society of Scotland, who must be worrying that we are trying to steer people away from Scottish lawyers; but that is their problem.
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I was slightly less happy with the Minister's response to amendment No. 2. He said that everything was to be reviewed and changed, so it would all be okay. He seemed almost to be giving a commitment on behalf of a completely different institution. I do not know whether he feels that he can speak on behalf of Members of the Scottish Parliament, but as he has been so forthcoming, I am willing to accept his reassurances in good faith. He has good contacts with MSPs and I am sure that he exercises some influence over them, so on this occasion we can accept that the matter will be dealt with, as it now properly should be, north of the border.
The Minister went even further on amendment No. 1 and said specifically that a circular of guidance would be issued that reflects the anxieties expressed today and puts in place the mechanisms that our new clauses and amendments were designed to achieve. As a result of

what he has said, of his courtesy and of his having taken such trouble to deal with these matters, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Clause 1

PROPERTY OF FORMER PATIENTS

Mr. Maclean: I beg to move amendment No. 3, in page 1, leave out lines 9 to 11 and insert—
'(a) hold, and receive interest accruing thereon, money, other financial assets and investments, and valuables on behalf of a person in pursuance of subsection (1) of this section, and'.

Mr. Deputy Speaker (Mr. Michael Lord): With this, it will be convenient to discuss amendment No. 4, in page 1, line 16, at end insert—
'(3B) If the value of other financial assets and investments and valuables held by the managers of a hospital under the provisions of subsection (3A) of this section exceeds £5,000 then the administration of the patient's financial portfolio shall be passed to an independent financial adviser or professional, or curator bonis appointed by the Mental Welfare Commission for Scotland.'.

Mr. Maclean: I apologise to the House, as it was remiss of me not to mention the hon. Member for Midlothian (Mr. Clarke), the Bill's promoter, and the hon. Member for Paisley, North (Mrs. Adams), for whom I have the utmost respect. She is a very brave lady who has had a lot to put up with over the past few years. I congratulate her on piloting the Bill through today.
I hope that the Minister will be as courteous and as kind as he was in our previous discussion. He does not have a job in the Scottish Executive, but he will always be welcome in the House on a Friday, because of his demeanour and his approach.
Amendment No. 3 is designed to probe the definition of money that hospital managers may hold and expend on behalf of discharged patients. Following the terminology used in section 94, the Bill refers to hospital managers dealing with money or "valuables". "Valuables" would normally mean items such as a ring, watch or camera. That is what one feels the legislation means.
The amendment would add other assets and investments, to ensure that patients with holdings, however small, in forms other than cash or bank or building society accounts, do not fall outside the scope of the legislation. Those assets might not be "valuables" in the hospital administrator's sense of the term.
I accept that in practice there may be very few patients with such investments, but it is sensible to clarify the position. A patient could be left in a will a financial asset other than money deposited in a bank or building society. The amendment would allow such assets to be included in the property that can be administered by hospital managers. I suspect that the Minister may tell me that the definition of money would include those assets anyway, but it is better to be sure that such moneys are covered.
Amendment No. 4 is slightly different; its purpose is to ensure that if assets held by a discharged patient exceed £5,000 in value, the administration of the assets shall be carried out by a financial adviser or other suitable professional appointed by the Mental Welfare Commission for Scotland.
The amendment would guarantee that hospital managers did not become unduly burdened by having to administer assets of great value. There may be cases in which curators bonis deal with assets that are not of great monetary value, since it seems that they should be appointed to administer only those estates that are worth over £50,000. What about estates between £20,000 and £50,000?
I suggest that hospital managers should not have to administer any estate worth more than £5,000. I hope that if the Minister does not like that idea, at least my hon. Friend the Member for New Forest, West (Mr. Swayne) will, because he cannot complain that I am trying to put an undue burden on hospital managers. My amendment suggests that some other suitably qualified professional should be appointed.
That would also be in the best interests of patients. If assets are of considerable value, the ways in which they are invested can have a material effect on the financial returns that they earn. It is the job of a financial manager in a hospital to manage small sums and ensure that they are in a building society account earning whatever interest is available at the time. Someone with larger assets should have a more qualified professional, such as an investment manager appointed by the Mental Welfare Commission for Scotland, to ensure that those assets are deposited in the right sort of accounts, or used to acquire the right sort of bonds, stocks and shares, and trust funds, to give the best possible return. It is not a hospital manager's job to make such decisions.
My amendment would pass such responsibility to an independent professional appointed by the Mental Welfare Commission for Scotland. I chose the trigger value of £5,000 because if an incapax patient in hospital has more assets than that, the managers must obtain the consent of the commission before they can administer the funds. Scottish law already recognises that if hospital managers are investing funds of more than £5,000, they have to consult the commission as an appeal or regulatory body. I suggest that such matters should be taken out of the managers' hands and given to a financial adviser appointed by the commission.
In practice there may be very few such patients, and if the Minister tells me that the problem is already dealt with, or that there will be guidance, or that the problem will be dealt with in the new legislation now being designed in Scotland to cover mentally incapable adults, I should be happy to withdraw my amendment.

Mr. Macdonald: I hope that I can provide some of the reassurance that the right hon. Gentleman seeks. At present, section 94 of the 1984 Act, which applies to patients in hospital, provides for hospital managers to assume the management of money and valuables where no other arrangements have been made. Money and valuables are not defined; that is a benefit, and it works adequately to allow hospital managers the flexibility to do what is in the best interests of patients. Typically, money can include a variety of resources, including income from pensions, bank accounts and so on.
Amendment No. 4 would give the Mental Welfare Commission for Scotland the responsibility of appointing an independent financial adviser, other professional or curator bonis when a person discharged from hospital into the community has financial assets and valuables exceeding £5,000 in value.
At present, hospital managers require the consent of the Mental Welfare Commission to hold money or valuables on behalf of any person where the total value exceeds the sum determined by the First Minister. That sum currently stands at £5,000. There is already power under the Mental Health (Scotland) Act 1984 for the commission to appoint a curator bonis where no other suitable arrangements for the management of someone's resources have been made.
Amendment No. 4 would limit the very useful flexibility that the commission currently enjoys by requiring it to appoint a financial adviser or curator bonis in cases when it would still be perfectly acceptable for hospital managers to continue to look after a person's assets. It has been pointed out that administration of a person's assets can be expensive, and that the costs must be met from that person's resources. The judgment in each person's case is best left to the commission, as the people involved benefit from the flexibility that individual judgments provide. I hope that the right hon. Member for Penrith and The Border will accept that that flexibility protects the interests of the patient, and should therefore be retained.

Mr. Maclean: I listened carefully to the Minister. I am always worried that the Minister's fundamental courtesy will beguile me into accepting his point of view even though I profoundly disagree with him. I am grateful for his acknowledgement that the amendments are designed to improve the Bill.
I have no intention of pressing amendments that would remove flexibility. I accept the Minister's arguments about amendment No. 4. If I had drafted it differently, to include the hospital authority among the possible appointees of the commission, it might have been more acceptable. My naive intention, having read that the curator bonis can be quite an expensive option, was that appointing another financial adviser might be cheaper. Given that bank charges are rising inexorably, a banker or stock broker might levy even higher charges than a curator bonis.
I accept the Minister's warning that amendment No. 4 would reduce flexibility. I also accept his assurances, in connection with amendment No. 3, that the provision covering money and valuables is widely drafted and can include all sorts of valuables, over and above the few bits and bobs in people's handbags, suitcases or pockets when they go into hospital.
I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2

CITATION, COMMENCEMENT AND EXTENT

Mr. Forth: I beg to move amendment No. 7, in page 1, line 19, leave out 'two' and insert 'six'.
I hope that we can deal with this matter quickly. It is familiar territory for the House to give some consideration to a Bill's commencement period. In this case, I believe that it may be sensible to allow a somewhat longer period of time than is usual for commencement, simply to ensure that the mechanisms that the Bill introduces are firmly in place before it takes effect.
Undue haste in implementing the Bill is the last thing that we want, given that we are dealing with such sensitive and important matters. I accept that this matter


involves a balance of judgment, but I thought it appropriate to facilitate a brief exchange on the commencement period to establish whether the Minister was completely satisfied that all the managers on whom responsibilities will be placed will have sufficient opportunity to put the required mechanisms in place.
That is the objective behind the amendment. It is an important detail, and one worth consideration even at this late stage in our proceedings. I hope that the Minister will reassure me that he is satisfied that those on whom the new responsibilities will fall will be ready for them within the relatively short commencement period specified in the Bill.

Mr. Swayne: I do not see any reason for this amendment. It should be rejected. No one could accuse us of giving this Bill peremptory treatment or implementing it too speedily. It is supported by 11 Scottish Members of Parliament, two of whom are also Members of the Scottish Parliament, which is in recess. Any reservation on their part would have been quite properly expressed.
It is quite appropriate for this House to proceed to enact the Bill without reference to any other Parliament or having to require authority from anywhere else. That is entirely within the spirit of the Scotland Act 1998. I do not believe for one moment that there is a Member of Parliament from Scotland in the House who would urge that we do anything other than reject the amendment.

Mr. Macdonald: I hope that I can assure Members that two months is adequate time to gear up in the way that the right hon. Member for Bromley and Chislehurst (Mr. Forth) suggests. It is the normal amount of time, as hon. Members know. It will allow all necessary guidance to be issued to hospital managers, and allow them to make all necessary arrangements to implement the Act.
The reason for the Bill is that the pace of the on-going move of people from hospital into community care in Scotland is picking up. So, over coming months, significant numbers of people will be affected by the anomaly that the Bill addresses. For that reason, we would not wish to delay the Act's implementation beyond two months.

Mr. Forth: I am grateful to the Minister. I readily accept his balance of judgment that the urgency of dealing with the number of cases outweighs any possible reservations about the speed with which the measures in the Bill can be implemented. Given his reassurance and balance of judgment, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Order for Third Reading read.

Mrs. Irene Adams: I beg to move, That the Bill be now read the Third time.
We have reached the concluding stages of this Bill in its voyage through the House. On Second Reading, the winds were all favourable and excellent progress was

made. In Committee, there was just a hint in the comments of the right hon. Member for Bromley and Chislehurst (Mr. Forth) that there could be some squalls ahead. Indeed, on Report earlier today, the winds blew rather strongly.
I thank the right hon. Gentleman and the right hon. Member for Penrith and The Border (Mr. Maclean) for their well-intentioned and well-drafted amendments and for graciously withdrawing them in the light of the comments of my hon. Friend the Under-Secretary of State for Scotland. I am glad to say that the Bill has emerged unscathed into what I hope can be calmer waters.
I again pay tribute to the skilful piloting of the Bill through its earlier stages by my hon. Friend the Member for Midlothian (Mr. Clarke). It is a great honour for me to assume the badge of temporary pilot during its remaining stages, but it is in my hon. Friend's direction that all the credit must go. We all wish him a speedy recovery.
This is not a large Bill. However, we know that good things often come in small packages and, despite its size, it has the potential to make a big difference to the lives of some of our most unfortunate and disadvantaged fellow citizens. It addresses the gap in the Mental Health (Scotland) Act 1984 which deprives a growing number of people of the benefits of their own funds when they leave hospital. Hon. Members on both sides of the House have warmly endorsed its passage so far. On behalf of my hon. Friend the Member for Midlothian, I seek their further support in giving the Bill a Third Reading.
I commend the Bill to the House.

Mr. McLoughlin: The Opposition welcome the Bill and commend those who have introduced it. I join the hon. Member for Paisley, North (Mrs. Adams) in congratulating and wishing a speedy recovery to the hon. Member for Midlothian (Mr. Clarke).
The Bill is a classic example of a well thought out and sensible measure that commands support from both sides of the House, so it is properly suited to private Members' business. It has been carefully scrutinised as a result of the thoughtful amendments that have been tabled and considered this morning. The Bill, being so well drafted, survived that process exceptionally well.
By allowing hospital managers not only to receive money and valuables for a person who is liable to be detained and who is being treated in the hospital, but to continue to hold and spend such funds on such patients after they leave hospital, the Bill will ensure that such moneys can be used for their benefit and are not trapped when the patient starts to reside in the community. As care in the community is to be encouraged where feasible, it is obviously most desirable that this change should be implemented.
The Bill is also noteworthy because the House is legislating on a matter that became devolved to the Scottish Parliament on 1 July 1999—although the devolution rules did provide that legislation introduced before that date could complete its course through the Westminster Parliament. If there had been any resistance from the Scottish Parliament to our continuing to consider the measure, the official Opposition would have been reluctant to lend support to the Bill today. However, it is clear that MSPs of all parties, and the official bodies—


such as the Law Society of Scotland—that supported the Bill initially, all want the Bill to complete its passage through this place and remove from the Scottish Parliament the burden of passing identical legislation later.
The Bill therefore stands as an example of post-devolution co-operation between both Parliaments. That fact makes it doubly welcome, and we are happy to give it our support today.

Mr. Macdonald: My hon. Friend the Member for Midlothian (Mr. Clarke), ably assisted by my hon. Friend the Member for Paisley, North (Mrs. Adams), has done an excellent job of steering the Bill safely to this point.
The Government have been delighted to support the Bill. It will make a welcome contribution to the welfare of a growing number of people who are unable, due to incapacity, to look after their own affairs after leaving hospital to live in the community. I am sure that my hon. Friend the Member for Midlothian will be able to look back with no little pride on this piece of legislation, which we have come to know as the Clarke Bill, and which I hope will shortly become the Clarke Act.

Mr. Forth: I echo the words of my hon. Friend the Member for West Derbyshire (Mr. McLoughlin) when he pointed out that this, in many ways, is a model private Member's Bill. It is a brief Bill. It covers a specific point. As the Minister pointed out, it has a degree of urgency about it. It has passed through its successive stages in the House in a proper manner. It came high in the ballot. It received a Second Reading and was considered in Committee, and we have given it a thorough examination on Report.
The hon. Member for Paisley, North (Mrs. Adams) was kind enough to acknowledge that the amendments that I and my right hon. Friend the Member for Penrith and The Border (Mr. Maclean) tabled were designed either to improve the Bill or to get from the Minister the reassurances that, happily, we have got. We have now found out that one of the results of that will be the issue of a circular of guidance, which, in the Minister's view, will strengthen the Bill's provisions. I agree with him. Therefore, the net result of our deliberations, today in particular, has been to strengthen the Bill—as the Minister and the hon. Lady were kind enough to acknowledge. All in all, we can feel satisfied that the proceedings of the House have been properly conducted and have been productive and a force for good. That is as it should be.
Most of the reservations that I had about the Bill, on which I reflected briefly in Committee, have now been put to one side. In cases such as this we always hope that any fears that we may have had will prove groundless; that the additional burdens, if I may put it that way, or obligations that are imposed by this type of legislation, however limited it may seem in scope, can be handled by those responsible; and that it will enhance and protect the well-being of the group at which the legislation is aimed. I believe that on balance that is the case. We have heard from the Law Society of Scotland and from other organisations that have been involved, and it would be appropriate to give the Bill our final approval. We should

then keep more than half an eye on the indications that the Minister has given that matters will be carried forward in a Scottish context.
I am delighted to see that the Secretary of State for Scotland is on the Treasury Front Bench to keep a close eye on us and to perform the bridging function that he told us recently he will be performing between what we have done in this place as perhaps a last goodbye to Scottish legislative matters, and the Scottish Parliament. All in all, I think that the Bill will represent an improvement. The House can be happy with it.

Mr. Maclean: I am pleased to add my congratulations to the hon. Member for Midlothian (Mr. Clarke) on his early piloting of the Bill through the House. I congratulate also the hon. Member for Paisley, North (Mrs. Adams), whom I have already commended for her courage in her constituency and for the skilful way in which she has piloted the Bill today. It is important particularly that I congratulate the Minister. He paid tribute to his hon. Friends and to my right hon. and hon. Friends and me for the quality of our amendments, which is rather flattering. He was either making that up or it was in his notes from his officials, in which case I am glad that we were able to impress Scottish Office officials with the quality of our drafting.
Some of our amendments were designed as probing amendments, but I would genuinely have wished to see others of them inserted in the Bill. Given the Minister's assurances that matters were already in hand or that the matters we were raising were already covered somewhere in the Bill, or that he would take up our suggestions and issue guidance and codes of practice, for example, he persuaded us not to proceed with our amendments.
I hold out the Minister as an example to be followed by some other Ministers, perhaps from south of the border, who come to the House on Fridays and become rather impatient or intolerant when they do not get their Bills through in 10 minutes flat, without Members considering them in any detail. The Bills that have come before us today have been given proper consideration.
I hope that Labour Back-Bench Members will not get too annoyed with the rest of the Government when their precious Bills are ruthlessly destroyed by the Government in a few minutes' time. It is of great regret to me that we shall not be able to consider those matters properly, as we have considered the Bill. That is because the Government have given the poisoned chalice to those nice guys from the Government Whips Office, who have to kill off legislation that the Government find intolerable.
My right hon. and hon. Friends and I thought that the Bill was good and that is why we supported it. We thought that it could be improved slightly but we were willing to accept the guidance not only of the Minister, but of the Scottish Association for Mental Health, which welcomed the Bill. It said that it was
a small improvement to an unacceptable situation.
It spoke of the need for safeguards, and I thought that it was worth while pursuing that point. However, I was happy to back down in the light of the Minister's assurances.
The Law Society of Scotland is also in favour of the provisions of the Bill, stating that it will
solve a problem that is affecting a substantial number of former hospital residents in Scotland.
The society has urged Members to support the Bill. The Mental Welfare Commission for Scotland also welcomes the Bill.
In these circumstances, I am happy to see the Bill pass into law. I congratulate all who have been associated with getting it this far. I hope that the measure is successful in Scotland in the coming months once it is legislation.

Mrs. Irene Adams: We have had a short but interesting debate and there remains little to be said. However, I am grateful for the positive contributions that have been made, and it is good to see all Members on both sides of the House supporting the aims of the Bill.
Incapacity is no respecter of persons. It behoves us all to do everything in our power to improve the circumstances of those who sadly find themselves in that situation.

Question put and agreed to.

Bill accordingly read the Third time, and passed.

FUR FARMING (PROHIBITION) BILL

As amended in the Standing Committee, further considered.

Clause 3

EFFECT OF FORFEITURE ORDERS

Amendment proposed [14 May]: No. 36, in page 2, line 20, at the end to insert the words—
'(c) in Northern Ireland, to the Crown Coure'.—(Mr. Forth.).

Question again proposed, That the amendment be made.

Mr. Deputy Speaker (Mr. Michael Lord): I remind the House that with this we are discussing the following amendments: No. 37, in clause 5, page 3, line 42, at end insert—
'(c) in the case of businesses or parts of businesses carried on solely or primarily in Northern Ireland, the Lands Tribunal for Northern Ireland.'.
No. 38, in clause 6, page 4, line 6, at end insert—
'(d) in relation to Northern Ireland, the Secretary of State'.
No. 35, in clause 7, page 4, line 13, leave out subsection (5).

Mr. David Maclean: Mr. Deputy Speaker—

It being half-past Two o'clock, the debate stood adjourned.

Debate to be resumed on Friday 5 November.

Remaining Private Members' Bills

REFERENDUMS BILL

Order read for resuming adjourned debate on new clause—(Commencement (No.2))—proposed [21 May] on further consideration of Bill, as amended in the Standing Committee.

Hon. Members: Object.

Debate further adjourned till Friday 5 November.

CROWN PREROGATIVES (PARLIAMENTARY CONTROL) BILL

Order for Second Reading read.—[Queen's consent, on behalf of the Crown, signified.]

Hon. Members: Object.

Mr. Deputy Speaker (Mr. Michael Lord): Second Reading what day? No day named.

TRANSPORT OF FARM ANIMALS BILL

Order for Second Reading read.

Hon. Members: Object.

Mr. Deputy Speaker: Second Reading what day? No day named.

MILITARY ACTION AGAINST IRAQ (PARLIAMENTARY APPROVAL) BILL

Order for Second Reading read.

Mr. Deputy Speaker: As the Queen's consent has not been obtained, this cannot be dealt with. Second Reading what day? No day named.

SEA FISHERIES (SHELLFISH) (AMENDMENT) BILL [LORDS]

Order for Second Reading read.

Hon. Members: Object.

Mr. Deputy Speaker: Second Reading what day? No day named.

SEXUAL OFFENCES (ANONYMITY OF DEFENDANTS) BILL

Order for Second Reading read.

Hon. Members: Object.

Mr. Deputy Speaker: Second Reading what day? No day named.

RECYCLED CONTENT OF NEWSPRINT BILL

Order for Second Reading read.

Hon. Members: Object.

Mr. Deputy Speaker: Second Reading what day? No day named.

COMPUTER MILLENNIUM NON-COMPLIANCE (CONTINGENCY PLANS) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 5 November.

CANCER CARE BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 5 November.

FUEL SAFETY BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 5 November.

RECYCLING OF HOUSEHOLD WASTE BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 29 October.

POVERTY AND SOCIAL EXCLUSION (NATIONAL STRATEGY) BILL

Order for Second Reading read.

Hon. Members: Object.

Mr. Deputy Speaker: Second Reading what day? No day named.

CHEQUES (SCOTLAND) BILL

Order read for resuming adjourned debate on Second Reading [19 March].

Mr. Deputy Speaker: Not moved.

MOTOR ACCIDENT INJURY COMPENSATION BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 5 November.

BELLS ON PEDAL CYCLES BILL

Order for Second Reading read.

Hon. Members: Object.

Mr. Deputy Speaker: Second Reading what day? No day named.

PREVENTION OF DELAY IN TRIALS BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 5 November.

DIGITAL TELEVISION BROADCASTING BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 5 November.

MISUSE OF DRUGS (AMENDMENT) BILL

Order for Second Reading read.

Mr. Paul Flynn: Moved in the name of compassion and common sense.

Hon. Members: Object.

Second Reading deferred till Friday 5 November.

CONCESSIONARY TELEVISION LICENCES FOR PENSIONERS BILL

Order for Second Reading read.

Mr. David Winnick: I beg to move, on behalf of all the pensioners in Britain.

Hon. Members: Object.

Second Reading deferred till Friday 5 November.

NUCLEAR SAFEGUARDS BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 5 November.

PRESCRIPTION CHARGES (HORMONE REPLACEMENT THERAPY) BILL

Order for Second Reading read.

Hon. Members: Object.

Mr. Deputy Speaker: Second Reading what day?

Mr. Clive Efford: On behalf of the Member concerned, 5 November—if you can squeeze it in, Mr. Deputy Speaker.

Second Reading deferred till Friday 5 November.

RESTRAINING AND PROTECTION ORDERS BILL

Order for Second Reading read.

Hon. Members: Object.

Mr. Deputy Speaker: Second Reading what day? No day named.

COUNTRY LANES AND VILLAGES BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 29 October.

BIRTHS AND DEATHS REGISTRATION (AMENDMENT) BILL [LORDS]

Order for Second Reading read.

Mr. Deputy Speaker: Not moved.

ENERGY CONSERVATION (HOUSING) BILL

Order read for resuming adjourned debate on Second Reading [30 April].

Hon. Members: Object.

Debate further adjourned till Friday 5 November.

ENERGY EFFICIENCY BILL

Order read for resuming adjourned debate on Second Reading [12 March].

Hon. Members: Object.

Debate further adjourned till Friday 5 November.

PENSIONS (AMENDMENT) BILL

Order for Second Reading read.

Hon. Members: Object.

Mr. Deputy Speaker: Second Reading what day? No day named.

WILDLIFE AND COUNTRYSIDE (AMENDMENT) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 5 November.

REGULATIONS ON SMALL BUSINESSES (REDUCTION) BILL

Order for Second Reading read.

Hon. Members: Object.

Mr. Deputy Speaker: Second Reading what day? No day named.

HARE COURSING BILL

Order for Second Reading read.

Mr. Deputy Speaker: Not moved.

AGE LIMITS ON HEALTH CARE BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 5 November.

HEALTH CARE AND ENERGY EFFICIENCY BILL

Order read for resuming adjourned debate on Second Reading [23 April].

Hon. Members: Object.

Debate further adjourned till Friday 5 November.

ACCESS TO ENVIRONMENTAL INFORMATION BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 5 November.

PLANNING APPEALS BILL

Order for Second Reading read.

Hon. Members: Object.

Mr. Deputy Speaker: Second Reading what day? No day named.

BUS FUEL DUTY (EXEMPTIONS) BILL

Order read for resuming adjourned debate on Second Reading [12 March].

Hon. Members: Object.

Mr. Deputy Speaker: Debate to be resumed what day? No day named.

PUBLIC HOUSE NAMES BILL

Order for Second Reading read.

Hon. Members: Object.

Mr. Deputy Speaker: Second Reading what day? No day named.

EUROPEAN PARLIAMENTARY ELECTIONS (GIBRALTAR) BILL [LORDS]

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 5 November.

ROAD TRAFFIC REGULATION (CYCLE PARKING) BILL [LORDS]

Order for Second Reading read.

Mr. Deputy Speaker: Not moved.

WAITING TIMES (NATIONAL HEALTH SERVICE) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 5 November.

STREETWORKS BILL

Order for Second Reading read.

Mr. Deputy Speaker: Not moved.

ROYAL PARKS (TRADING) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 29 October.

HOUSE OF COMMONS DISQUALIFICATION (AMENDMENT) BILL

Order for Second Reading read.

Hon. Members: Object.

Mr. Deputy Speaker: Second Reading what day? No day named.

PARLIAMENTARY CONTROL OF THE EXECUTIVE BILL

Order for Second Reading read.—[Queen's consent, on behalf of the Crown, signified.]

Hon. Members: Object.

Mr. Deputy Speaker: Second Reading what day? No day named.

GENETICALLY MODIFIED FOOD AND RODUCER LIABILITY BILL

Order for Second Reading read.

Hon. Members: Object.

Mr. Deputy Speaker: Second Reading what day? No day named.

HOLOCAUST REMEMBRANCE DAY BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 5 November.

EMPTY HOMES BILL

Order for Second Reading read

Hon. Members: Object.

Mr. Deputy Speaker: Second Reading what day? No day named.

ACADEMIC AND ACADEMIC-RELATED STAFF PAY AND CONDITIONS BILL [LORDS]

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 29 October.

BROADCASTING (RELIGIOUS PROGRAMMING) BILL

Order for Second Reading read.

Hon. Members: Object.

Mr. Deputy Speaker: Second Reading what day? No day named.

CHILDREN'S RIGHTS COMMISSIONER BILL

Order for Second Reading read.

Hon. Members: Object.

Mr. Deputy Speaker: Second Reading, what day? No day named.

ROAD TRAFFIC (ENFORCEMENT POWERS) BILL [LORDS]

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 5 November.

EMPLOYMENT RIGHTS (INTERNATIONAL OBLIGATIONS) BILL

Order for Second Reading read

Hon. Members: Object.

Mr. Deputy Speaker: Second Reading what day? No day named.

Mr. Clive Efford: On a point of order, Mr. Deputy Speaker. Can you advise the House? A number of Bills have been moved by Members whose names do not appear alongside those Bills on the Order Paper. Have they checked with the appropriate Members whether they wanted those Bills to be moved this afternoon and did they have their permission to move them? Certain Members with Bills standing in their names were not present. If they have not said that they want other Members to move their Bills on their behalf, certain Members have been wasting the House's time.

Mr. Deputy Speaker: I have to tell the hon. Gentleman that the way in which we have proceeded is entirely in order.

BUSINESS OF THE HOUSE

Motion made, and Question proposed,
That, at the sitting on Monday 26th July, the Speaker shall not adjourn the House until any Message from the Lords shall have been received.—[Mr. Hill.]

Hon. Members: Object.

Mr. David Cunliffe

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Hill.]

Dr. Brian Iddon: I regret to have to raise an individual case on the Floor of the House, but, as I shall reveal, there are lessons to be learned from it.
David Alan Cunliffe, the son of one of my constituents, died of an overdose of amphetamine on Wednesday 2 October 1996 in his flat in Higher Openshaw, Manchester, aged 29. He had lived there for two years. His correct name was known to his landlord and it was on a bottle of tablets and a probation service report found in the flat by the police. He was taken to the mortuary at Manchester royal infirmary, where a pathological examination was conducted and the cause of death established.
When the police searched David's flat, they could find no evidence that would lead them into direct contact with relatives. However, the probation service report, which was dated 11 July 1995, said that he had been involved with drugs and crime for a long time and that he was from the Bolton area. Significantly, the report also referred to the fact that he had suffered from mental illness and had been treated as an in-patient at Prestwich hospital.
David had long been involved with the police, in Bolton and in Manchester, and I have provided my hon. Friend the Minister with evidence that he was very well known to them, especially in Bolton. About three years before his death, he was arrested in Bolton and held at Bolton central police station in the cells, where a balloon containing illegal substances burst in his mouth, causing an overdose that resulted in collapse and transfer to what was then Bolton district hospital. His mother, who has lived in the same house in my constituency for the past 22 years, was contacted within two hours by the police.
Following David's death in Manchester, a police officer at Collyhurst police station contacted the Greater Manchester police press office on 10 October 1996 with a request to include the fatality on its press media line. Following that, the police received no inquiries. The police officer made no attempt to contact either the Bolton Evening News or the Manchester Evening News to establish whether they had carried the story. We have established that they did not.
As a result of complaints received from David's sister—Mrs. Rita Houghton, who is also one of my constituents—Greater Manchester police have changed their procedures. Officers are now asked to follow up press media line notices if they receive no inquiries and they specifically ask local newspapers to carry news of fatalities if they have not already done so in order that every effort is made to contact relatives. I am sure that my hon. Friend the Minister agrees that every police force should be rigorous in that respect and I hope that she will issue instructions following this sad episode.
David Cunliffe was buried at the expense of Manchester social services department on 4 December 1996 in a common grave in Gorton cemetery, where his body still lies in section L116. His relatives want the body to be exhumed and transferred to Bolton so that they can attend a proper funeral. The problem is that they cannot afford to exhume the body and transfer it to Bolton.
Even worse, a second body has been buried in the common grave on top of that of David. We obtained the permission of my right hon. Friend the Home Secretary to exhume both bodies and permission was obtained from the relatives of the second person to disturb the grave. Unfortunately, our exhumation certificate expired on 7 May, although we can have it renewed.
I suggested to Greater Manchester police that they had made little attempt to locate David's relatives and that they should meet the cost of exhumation and reburial as a matter of good will, but they declined. It appears that they contacted local hospitals, but I am not sure which ones. They may have contacted Bolton district hospital, given the Bolton connection. They allege, however, that the hospital, or hospitals, would not reveal the addresses of David's relatives, on grounds of confidentiality, which apparently is preserved even following death.
I took the matter up with my right hon. Friend the Minister for Public Health, who confirmed that
it would be in order for access to medical records to be refused where there was no consent from the next of kin".
In the same letter, however—dated 30 March this year—my right hon. Friend said:
The Trust"—
Central Manchester Healthcare NHS trust—
have confirmed that, where a patient dies in hospital and has no known next of kin, then the notes would be read and any names and addresses passed to the police to help them trace the next of kin".
Unfortunately, David did not die in Manchester royal infirmary.
The Greater Manchester police also claim to have contacted Bolton metropolitan borough council's housing department, the probation services and social services to make inquiries about relatives—surprisingly, without success. However, on or about 5 June 1997, an informal inquiry at Prestwich hospital revealed the address of David's mother, who was then informed by the police of his death, which had taken place nine months earlier. I remind my hon. Friend the Minister that Prestwich hospital was mentioned in the probation service report of 1995, which was found in David's flat on the day of his death.
At a recent meeting attended by the deputy chief constable of Greater Manchester police, I asked whether, if David Cunliffe had been found murdered rather than overdosed, the police would have been able to gain access to the addresses of relatives. After a pause, the police admitted that they had the ways and means so to do. Does my hon. Friend agree that hospitals need to be given clear guidelines if they are to help the police in all fatality cases, not merely murder cases?
Why does my hon. Friend think that Greater Manchester police appear not to have made inquiries of K division in Bolton, where David Cunliffe's criminal activities were well known? They have made the excuse that he used aliases, but I remind the House that the probation service report and the bottle of tablets found in David's flat were in his correct name. The landlord had also been given his correct name. There seems to have been a lack of care on the part of the police, but I cannot get them to accept that.
I remind my hon. Friend also that the police have changed their procedures following complaints from the family. I cannot believe that Greater Manchester police,


with all their training and resources, could not have found David Cunliffe's relatives and saved his family all that anguish if they had tried just that little bit harder.
At the meeting that I held with Great Manchester police, they claimed that the Data Protection Acts had made their inquiries more difficult in cases such as this, because they are not allowed to keep what they describe as "dangerous information" in computer files, however useful it might be to their present work or their future activities. It was suggested that a lot of useful information had been weeded out since the setting up of computer databases throughout the police force.
I have also corresponded with Councillor Stephen Murphy, the chairman of the Greater Manchester police authority, and Councillor Frank White, a former Member of Parliament who is now Bolton metropolitan borough's representative on the police committee. Both have been extremely helpful. They feel, as I do, that David's family have suffered unnecessarily and should be given as much help as possible at this stage for compassionate reasons.
Let me now turn to the role of the coroner for the Manchester city district, who dealt with the case. By the time of the inquest, relatives had been contacted. In a letter to me dated 19 May this year, the coroner admitted that he knew that a brother had been in court. In fact, David's brother and two sisters were in court on that day. The coroner also knew that Manchester's social services department had been involved with the burial, but he did not establish the reasons for that.
Manchester contains numerous people with no fixed abode, whose families are not local and who have very few belongings, which, when searched, give no information about relatives. In some cases, even when relatives can be contacted, some cannot, or will not bury their relatives' bodies. The cost then falls on the Manchester social services department.
Following my approach to the coroner about David Cunliffe's death, he has informed his staff that, when told that social services are involved in a case, they should ask the reasons why. If the answer is because relatives cannot be found, in future further questions will be asked. The fatality has caused the coroner to change his procedures, too.
The coroner has informed me that, at the time of David's death, there was a designated coroners officer who, if he had been approached in such a case, would have made appropriate investigations to trace relatives, or to ensure that the police made every effort to do so before releasing the body for burial. However, in the David Cunliffe case, the coroner does not know exactly what was done.
It is an extremely sad story. I am sure that many people like David Cunliffe die in similarly tragic circumstances without their relatives knowing. Somewhere, there are two of David Cunliffe's children from a former relationship. Surely, they have a right to know what happened to their father and where he is buried. His mother, brothers and sisters certainly have a right to know. Can it be that the lives of people who become the victims of the misuse of drugs are not regarded as quite as important as yours, Mr. Deputy Speaker, or mine? I hope that that is not the case.
The systems have failed the Cunliffe family. If only the police had been a bit more diligent; if only they had established better communications with the coroner's office; if only the coroner had asked the police some relevant questions; if only the references to Bolton and Prestwich hospital in the probation report that was found in David's flat had been followed up immediately; if only the national health service had been given clear guidelines about helping the police with inquiries arising from all fatalities, not just murders, David Alan Cunliffe might have been reunited with his family for a proper burial. Is it too late?
I do not attempt to apportion blame in what is a sad case. I raise the issue in the hope, first, that someone will help the Cunliffe family, even at this late stage, and, secondly, that the Minister will try to ensure that authorities throughout the country will learn something from the case.

The Parliamentary Under-Secretary of State for the Home Department (Kate Hoey): I am grateful to my hon. Friend the Member for Bolton, South-East (Dr. Iddon) for clearly setting out the background to this tragic case and the lessons that he considers should be drawn from it. I welcome the consistent work that he has put into the case and his dealings with all the authorities—I would expect no less from him as a Member of Parliament.
No hon. Member can really understand the pain and distress that David Cunliffe's family felt on learning of David's death eight months after it occurred and of his burial in an unmarked grave. I share the concern that the relevant authorities should learn from the case, even though, as my hon. Friend has said, it is not necessarily possible to apportion blame for what occurred.
It is a painful but necessary task, which the police perform, to trace and notify the next of kin of the death of their loved ones. We might expect that to be a straightforward task in a modern age of instant communication and computer databases, but that underestimates the difficulties that can occur in some cases, particularly with those who have perhaps distanced themselves from family, who lived on what can be seen as the fringes of society.
As my hon. Friend has said, David Cunliffe was found dead at his home in Openshaw, where he lived alone, on 2 October 1996. As in all suspicious deaths, the Greater Manchester police conducted initial inquiries into the circumstances of his death, and reported the case to the coroner. The cause of death was established as a drugs overdose.
Greater Manchester police say that they were unable to identify Mr. Cunliffe's next of kin and extensive inquiries were, therefore, conducted to trace them. To clarify a point that was raised by my hon. Friend, those inquiries were carried out by the officer designated locally to liaise with the coroner's office on such cases.
The police say that the local health bodies were contacted for assistance, but that, in accordance with their confidentiality policy, they were unable to provide the information requested to the police. Social services and the probation service were also contacted, but they were unable to provide any information that would assist in locating the next of kin.
An appeal for relatives of the deceased to come forward was included on the Greater Manchester police media line, which is an information line accessed by the local media. Unfortunately, there is no obligation on the press to carry such appeals and, as my hon Friend noted, this particular appeal was not picked up by either the Bolton Evening News or the Manchester Evening News although it might have helped to lead police to Mr. Cunliffe's family.
The unsuccessful outcome of those inquiries was reported to the coroner, who authorised the release of Mr. Cunliffe's body for burial. This was carried out on 4 December 1996, just after two months after he had been found dead. As my hon. Friend has said, he was buried in a common grave in Gorton cemetery. The cost of burial was met by Manchester social services in the absence of the next of kin.
However, it was not the end of the matter for the police. A second officer continued to make inquiries to trace David Cunliffe's next of kin. In June 1997, I understand that informal contact between the officer and a local hospital led the police to identify the address of David's mother and the police were finally able to break the news to her of her son's death the previous October. It should be noted that there had not been any inquiries to the police regarding Mr. Cunliffe's whereabouts in the intervening period.
It is clearly regrettable that it took so long to trace Mr. Cunliffe's family, but that does not necessarily mean that the police were somehow at fault in the way they carried out this task. Nor would I accept that the circumstances of Mr. Cunliffe's death meant that the police were not as rigorous as they should have been in this case. I remind my hon. Friend that police inquiries continued until Mr. Cunliffe's next of kin had been traced and informed of his death.
The actions and decisions taken by police officers in the course of their duties are an operational matter for the chief officer of the police force concerned. Following representations from the family, I understand that Greater Manchester police carried out an internal review of the case. It confirmed that the officers involved had followed normal police procedures in the attempt to trace Mr. Cunliffe's next of kin. As I have said, inquiries had been made of relevant local authorities and agencies, but without success. As part of their review, the police approached these authorities and agencies again to ask for the same details of next of kin. The review team received the same response as the original officers and concluded that there was no reason to criticise the officers involved in the initial investigation.
The review, however, did identify a lack of knowledge about the operation of the force's media line, which had been used in the unsuccessful attempt to place an appeal for information in the local press. Recommendations were made to improve awareness of the way the line operated and, as my hon. Friend indicated, police officers are now meant to follow up appeals on the media line if no response is received and, if necessary, specifically ask the local press to cover particular appeals.
The police were unable to obtain details of Mr. Cunliffe's next of kin when they initially approached local hospitals because of the confidentiality policy operated there. Decisions on disclosure are a matter for the NHS trust or other body which is being asked to

disclose, so it would not be appropriate for me to comment on the decision taken by those bodies. However, as my hon. Friend said, there are discussions on that.
In March 1996 the Department of Health issued guidance to the national health service on the protection and use of patient information. The guidance explains that personal information is protected by common law, the Data Protection Acts and the ethical responsibilities of health professionals. In general, any information given or received in confidence for one purpose may not be used for another or passed to anyone else without the consent of the provider of the information. That is unlikely to have been a problem as, on an earlier occasion, as my hon. Friend indicated, Mr. Cunliffe was admitted to hospital after a balloon containing drugs burst in his mouth and the police were able to contact his mother within two hours.
The duty of confidence continues to apply even after a patient's death. The Department of Health guidance makes it clear, however, that the duty is not absolute and it may give way to an overriding public interest. Further, although the guidance recognises that the duty of confidence may continue after death, disclosure in the public interest should be easier to justify in such circumstances. However, the responsibility for deciding whether to allow disclosure rests with the NHS body concerned, based on the circumstances of the request.
As my hon. Friend said, the Department of Health is aware of the need to raise awareness of protocols for information sharing between NHS and non-NHS bodies, and of the need to ensure that confidentiality requirements do not become a bar to the legitimate flow of information. All NHS organisations were asked to have in place, by April 1999, "guardians" of patient confidentiality to help improve the way in which the NHS handles confidential patient information. One of the guardians' responsibilities will be to oversee the development of information-sharing protocols and ensure effective liaison with non-NHS partner organisations. Each organisation's performance will be monitored by the Department of Health, and I hope that that will lead to more effective co-operation with the police service.
My hon. Friend has also mentioned the role of the coroner in this sad case. As he will know, it is not a function of the coroner to identify the relatives of those whose deaths are reported to him for investigation. However, as part of a coroner's inquiries, it will usually be necessary to make contact with the immediate family in case they are able to shed any light on the circumstances of the death, and so that they may, if they wish, exercise their rights in relation to any post mortem examination or at the inquest.
It is also a matter for the coroner to decide when and to whom he should release the body for burial or cremation. The normal practice is to release the body at the earliest opportunity, and in advance of the substantive inquest hearing. The body will normally be released to the executors or family of the deceased.
In the great majority of cases, relatives can be located readily, but occasionally there can be difficulties, and in some cases there will be no relatives to find. It will be a matter for the coroner's judgment to decide how much effort should be devoted to such inquiries in the light of all the circumstances known to him. When there appears to be no one else to make the funeral arrangements, the coroner may release the body to the local authority. That is what happened in David Cunliffe's case.
The Home Office has not issued guidance to coroners on how to proceed in those circumstances. I note, however, that the Manchester city coroner has decided that, in future, if his staff are told that the local authority is making the funeral arrangements, action should be taken to determine whether further inquiries could be made to establish the whereabouts of any relatives. I am not sure how much more effective that may be than police inquiries, but it clearly makes sense to make every reasonable effort to find the family of the deceased. We therefore propose to consider the matter with coroners generally, to determine whether there are some helpful lessons to be learned.
All hon. Members will have sympathy with the family's concern to have David's body exhumed for a family burial in Bolton. As my hon. Friend mentioned, when the problem of the location of David Cunliffe's grave was brought to my Department's attention, we explained that a Home Office licence under section 25 of the Burial Act 1857 would be needed to remove the body for reburial elsewhere, but also that, as there was another body in the grave, the agreement of that person's next of kin would be required. With the assistance of the burial authorities at Gorton cemetery, the next of kin of the other deceased person was traced and consent was duly given. On 7 May 1998, Home Office licences were issued.
Although, as my hon. Friend pointed out, the validity of those licences has now expired, I assure him that there should be no difficulty in principle in reissuing the licences for a further period, provided that there has been no material change in circumstances. However, I should say that, out of consideration for the other family involved, it might be best not to renew the application until there is some certainty that the exhumations can proceed.
My hon. Friend has suggested that Greater Manchester police should meet the costs of exhumation and reburial, presumably because of their failure to trace Mr. Cunliffe's next of kin at the time of his death. Although the force is sympathetic to the family's predicament, for the reasons I have explained, the force cannot accept that it was responsible for the delay that occurred, and therefore cannot agree to cover the costs involved in Mr. Cunliffe's

exhumation and reburial. That is the decision of the chief constable, and there is no discretion for me to intervene in the matter.
The House will recognise that there are circumstances in which it is appropriate for public funds to be used to provide a proper burial. That was clearly the case when, in the absence of the next of kin, the costs of the original burial were met by Manchester social services. It may be appropriate for the family to approach the social services department again, if there is a difficulty in finding the cost of reburial.
I understand how strongly my hon. Friend feels on this matter and I thank him for raising the case in the House today. We all have immense sympathy for Mr. Cunliffe's family and are concerned that it was not possible for the police to contact his parents earlier with the sad news of their son's death.
I hope that I have shown that the police do take seriously their responsibilities in this regard and that considerable efforts were made to trace Mr. Cunliffe's next of kin, eventually with success. For that reason, the chief constable is not prepared to meet the costs of exhumation and reburial, although my Department will look favourably on any application from the family to renew the licences.
My hon. Friend has made a number of important points about the police service, the coroners and other agencies, and how they could improve their procedures for dealing with such cases. I am pleased that, as he said, certain improvements have already been made. We can always look for new ways of ensuring that the co-operation between agencies makes a real difference in particular circumstances. I encourage the police, in particular, to continue to look for ways in which to apply the lessons learned from this and similar cases to improve the service that they provide.
I hope that my hon. Friend will find some comfort from what has been said in this short debate, and that Mr. Cunliffe's family will realise that his case has been discussed at the most senior levels of Government.

Question put and agreed to.

Adjourned accordingly at six minutes past Three o'clock.